';:!!:J^ 


UM 


THE   CONSTITUTIONAL  HISTORY 

AND  GOVERNMENT 


OF   THE 


UNITED   STATES 


a  ^eriejs  of  iLecturejs 


BY 


JUDSON  S.  LANDON,  ll.  d. 


^^^ 

^^H 

^^^I^M 

^^S 

BOSTON  AND  NEW  YORK 
HOUGHTON,  MIFFLIN  AND  COMPANY 

1889 


J^ 


-si 


u^ 


Copyright,  1889, 

Bt  jxjdson  s.  landon 
AU  rights  resei-ved. 


The  Riverside  Press,  Cambridge  : 
Printed  by  11.  0.  Houghton  and  Company. 


PREFACE. 


These  lectures  were  delivered  before  the  Senior  classes  at 
Union  College  during  the  four  years  in  which  the  author  was 
President  ad  interim  of  that  Institution.  Partly  narrative 
and  partly  expository,  they  are  an  attempt  to  present  in  a  sort 
of  perspective  something  of  the  story  of  the  Constitution,  its 
significance  and  development. 

Schenectady,  N.  Y.,  March  4,  1889. 


S^lLf- 


'  UNIVKKSITV  > 

COITTENTS. 


LECTURE  I. 

Introductory  Outline.  —  Free  Institutions  in  the  Colo- 
nies. —  Functions  of  the  National  and  State  Govern- 
ments     I 


LECTURE  IL 

Colonial  Governments  and  Liberties.  —  Threatened  Ag- 
gressions OF  the  Crown.  —  Indei^endence.  —  Formation 
OF  State  Constitutions .     li 


LECTURE  III. 

Necessity  for  a  National  Government.  —  The  Articles  of 
Confederation.  —  Failure  of  the  System.  —  Events  lead- 
ing TO  THE  Constitutional  Convention.  —  The  Conven- 
tion.—Its  Proceedings,  Debates,  and  Compromises. — 
Completion  of  the  Constitution 46 


LECTURE  IV. 

Ratification  of  the  Constitution.  —  Proceedings  in  the 
Conventions  of  the  Several  States 83 

LECTURE   V. 

Practical  Establishment  of  the  Government  under  the 
Constitution.  —  First  Measures.  —  Influence  of  Hamil- 
ton AND  Jefferson.  —  The  Hamiltonian  Era  of  Liberal 
Construction.  —  Formation  of  Parties.  —  Decisive  Meas- 
ures OF  THE  Government 97 

LECTURE  VL 

The  Passage  of  the  Nation  through  Perils.  —  Troubles 
WITH  France   and  England.  —  The   Alien  and   Sedition 


vi  CONTENTS. 

Laws.  —  Virginia  and  Kentucky  Resolutions.  —  Down- 
fall OF  THE  Federal  Party.  —  Jeffersonian  Era  of 
Strict  Construction.  —  Fears  of  Monarchy.  —  Of  Disso- 
lution. —  French  and  English  Outrages.  —  Embargo  and 
Non-Intercourse.  —  War  with  England.  —  Peace.  —  Hart- 
ford Convention.  —  Era  of  Good  Feeling.  —  Internal 
Improvements.  —  The  Monroe  Doctrine 120 


LECTURE  VII. 

The  Jackson  Era.  —  Bank.  —  Office-holding.  —  Tariff.  — 
Nullification. —  Whether  the  Constitution  is  a  Compact 
between  States,  or  the  Supreme  Government  over  the 
People?  —  Annexation  of  Texas.  —  Close  of  the  Period 
of  Narrow  Construction 146 


LECTURE  VIII. 
Slavery  in  the  United  States 175 

LECTURE  IX. 

The  Reconstruction  Period.  —  The  Negro  as  a  Citizen  and 
Voter.  —  International  Arbitration.  —  Interstate  Com- 
merce. —  Era  of  Great  Enterprises.  —  Tariff.  —  Taxa- 
tion   207 


^  LECTURE  X. 

The  Influence  of  the  Supreme  Court  upon  our  Constitu- 
tional Development  and  Growth 226 


LECTURE  XI. 

The  Influence  of  the  Supreme  Court.  —  Continued  .     .     .  257 

LECTURE  Xn. 

The  Thirteenth,  Fourteenth,  and  Fifteenth  Amendments, 
as  construed  by  the  Supreme  Court 281 

LECTURE  XIII. 

Some  of  the  Causes  op  the  Stability  and  Success  of  our 
Dual  System  of  Government 303 


CONTENTS.  vu 

LECTURE  XIV. 
Some  Supposed  Dangers 329 

Supplemental  Chapter 342 


APPENDIX. 

Articles  of  Confederation 351 

Constitution 359 

List  of  Members  of   the   Supreme   Court  of   the   United 
States 376 


UNIVER8ITY 

./FORNIA.  . 


CONSTITUTIONAL  HISTORY 


AND 

GOVERNMENT  OF  THE  UNITED  STATES. 


LECTURE  I. 

Introductory  Outline.  —  Free   Institutions  in  the    Colonies. 
—  Functions  of  the  National  and  State  Governments. 

The  Constitution  of  the  United  States  provides  for  the 
national  government  of  all  the  states,  as  though  all  formed 
one.  The  constitution  of  every  state  provides  for  its  domestic 
government  as  though  it  stood  alone.  Supplementing  but  not 
conflicting  with  one  another,  the  two  governments  complete 
one  system  of  national  and  domestic  government,  in  which  the 
liberty  and  security  of  the  individual  promote  the  power  and 
security  of  both  nation  and  state.  Tested  by  the  experience 
of  a  century,  the  system  is  approved  by  its  practical  results. 
Improvements  in  details  may  be  suggested  by  the  reformer, 
but  not  in  the  scheme  itself. 

Before  the  American  experiment  was  initiated,  it  was  a 
cardinal  rule  of  the  political  philosopher  that  a  republic  was 
practicable  only  in  a  state  of  very  small  territorial  extent. 
But  the  American  republic  seems  to  gain  in  vigor  and  solidity 
with  territorial  expansion.  Her  people  are  satisfied  with  the 
system  and  proud  of  it.  This  pride  and  satisfaction  are  ele- 
ments alike  of  its  strength  and  its  excellence.  It  may  not 
be  the  best  scheme  for  every  people  who  wish  self-govern- 
ment ;  but  in  this  age,  no  people  intelligent  enough  to  adopt 
self-government  would  undertake  to  do  it  without  first  mak- 
ing a  careful  study  of  our  system.  To  the  American  youth 
about  to  pass  from  his  college  into  active  life,  the  like  study 
may  be  earnestly  commended. 


2  CONSTITUTIONAL  HISTORY. 

I  shall  first  speak  of  the  constitutions  of  the  states  and  that 
of  the  United  States  historically. 

I  shall  try  to  give  some  idea  of  the  governmental  condition 
of  the  colonies  while  dependent  upon  Great  Britain ;  of  the 
Union  formed  to  resist  the  aggressions,  and  to  throw  off  the 
yoke  of  that  government ;  of  the  establishment  of  our  national 
independence,  and  the  formation  of  our  state  governments ;  of 
the  kind  of  national  government  which  existed  during  and 
after  the  war  of  the  Revolution  ;  o^  the  imperfections  of  that 
government  and  the  distress  and  anarchy  which  it  promoted ; 
of  the  events  which  led  to  the  meeting  of  the  convention  of 
delegates  from  the  states  to  form  our  present  Constitution ; 
of  some  of  the  plans  and  measures  which  were  discussed,  and 
the  manner  in  which  differences  in  interest  and  opinions  were 
compromised  and  expressed  in  constitutional  form ;  of  the 
contentions  which  followed  in  the  different  states  upon  the 
question  whether  the  Constitution  proposed  should  be  adopted 
or  not ;  of  its  final  adoption  ;  and  then  of  some  of  the  leading 
questions  in  our  constitutional  history  which  divided  parties, 
agitated  the  country,  and  at  times  threatened  the  dissolution 
of  the  government  from  the  day  of  the  adoption  of  the  Con- 
stitution down  to  the  present  time. 

This  recital,  in  which  causes  will  be  indicated  rather  than 
explored,  will  serve  to  show  how  the  Constitution,  which  in 
the  beginning  was  practically  very  weak  and  feeble  as  a  sys- 
tem of  government,  gradually  attracted  to  itself  the  confidence 
and  respect  of  the  people,  and  finally  attained  great  strength 
and  solidity.  There  will  be  occasion  to  speak  of  the  action 
of  presidents,  statesmen,  political  parties,  courts  of  justice,  and 
especially  of  that  potent  restorer  of  harmony  amidst  conten- 
tion and  of  system  out  of  confusion,  the  Supreme  Court  of 
the  nation,  and  of  our  dual  system  of  government  under  both 
national  and  state  governments;  how  each  govei:nment  has 
its  proper  sphere  and  is  helpful  to  the  other,  but  how  difficult 
it  has  sometimes  proved,  under  the  stimulus  of  interest  and 
partisanship,  to  discover  and  respect  the  line  that  divides  the 
state  from  the  national  authority. 

It  will,  I  think,  also  appear  that  these  constitutions  were 
not  to  any  great  extent  inventions,  but  the  natural  develop- 


DEVELOPMENT  OF  SIMPLE  SYSTEMS.        3 

ment  of  the  simple  systems  by  which  our  forefathers  were 
permitted  to  manage  their  colonial  and  township  affairs,  and 
which  they  adapted  and  conformed  to  their  situation,  neces-' 
sities,  spirit,  and  character,  and  then  perfected  and  expanded 
with  their  growth  and  changing  circumstances. 

The  early  colonists  were  here  in  the  wilderness.  Other 
colonists  had  preceded  them.  They  too  sought  new  homes, 
but  most  of  them  found  their  graves  instead.  When  these 
came,  they  could  not  know  whether  they  would  plant  a  na- 
tion, or  share  the  fate  of  those  who  had  gone  before.  Surely, 
no  king  over  the  wide  ocean  could  have  had  the  heart  to 
wish  these  exiles  ill.  If  when  first  they  ventured  forth,  or 
after  they  had  gone,  charters  were  asked  in  their  behalf,  well 
might  the  king  have  exclaimed,  "  Charters !  God  pity  the 
miserable  wanderers !  Charters  are  only  parchment.  Give 
them  charters." 

But  the  exiles  prospered.  They  were  nominally  under 
the  government  of  the  English  crown,  but  they  were  so  in- 
significant and  far  away  that  they  were  as  much  out  of  the 
royal  mind  as  out  of  sight.  Their  weakness  and  their  wants 
required  them  to  unite  and  protect  each  other.  Their  equal- 
ity of  condition  led  them  to  be  kind  and  just  to  each  other. 
Equality  of  condition  led  to  equality  of  inheritance,  and  pre- 
vented the  growth  of  an  aristocracy.  They  desired  liberty  of 
conscience  for  themselves,  and  were  slowly  and  finally  led  to 
secure  it  by  conceding  it  to  others.  After  the  family  and 
the  church,  the  township  was  the  nearest  object  of  their  care 
and  interest,  and  the  welfare  of  the  township  required  their 
attention  to  the  colony.  Profiting  by  the  neglect  of  the 
mother  country,  they  took  large  liberties  in  making  their  own 
laws,  and  soon  found  it  hard  to  distinguish  between  the  liber- 
ties tolerated  by  the  crown  and  those  it  had  conceded. 

Their  laws  were  adapted  to  their  situation.  But  to  make 
laws  and  secure  obedience  to  them  is  to  exercise  the  functions 
of  government.  And  from  the  first  half  of  the  seventeenth 
until  the  last  quarter  of  the  eighteenth  century  —  a  period  of 
at  least  four  generations  —  they  were  trained  and  developed 
in  the  theory  and  practice  of  self-government. 

The  opportunity  for  self-government  developed  a  capacity 


4  CONSTITUTIONAL  HISTORY. 

for  it.  The  colonies  had  separate  territories  and  systems. 
Local  self-government  was  exercised  to  the  utmost  limit  their 
charters  would  permit.  Naturally,  the  leading  colonists  be- 
came familiar  with  the  several  systems,  and  adopted  as  far 
as  they  could  the  best  features  of  the  best  of  them.  Thus 
their  systems  improved  side  by  side  and  became  very  good 
and  very  much  alike.  The  colonies  really  became  a  nation 
without  realizing  that  they  had  been  long  tending  in  that 
direction.  Surely,  a  great  people  of  common  race  origin,  al- 
legiance, language,  customs,  contiguity  of  territory,  and  sim- 
ilarity of  government  and  institutions,  lacked  only  the  bond 
of  a  single  organism  for  some  object  of  general  welfare  to 
complete  their  national  unity.  They  thoroughly  appreciated 
the  value  of  their  privileges  of  local  self-government,  and  were 
not  at  all  disposed  to  submit  to  the  oppression  which  threat- 
ened to  subvert  it ;  and  when  they  found  out  that  they  all  felt 
alike  about  it,  they  would  not  submit.  They  stretched  out 
their  hands  towards  each  other,  and  needed  only  to  close 
them  to  find  union  in  their  grasp. 

When,  therefore,  the  colonies  became  ripe  for  independence, 
and  rebelled  against  King  George  and  declared  themselves 
free  and  independent,  they  had  before  them  no  very  difiicult 
plan  of  reconstruction. 

They  made  their  constitutions  by  declaring  their  rights 
and  powers  as  they  had  been  accustomed  to  understand  and 
exercise  them.  They  erased  the  word  "  King,"  and  wrote 
"  People  ;  "  they  changed  their  flag  ;  and  when,  in  the  course 
of  their  struggle  to  make  gojod  their  Declaration  of  Inde- 
pendence, they  felt  the  importance  of  a  compact  union  of 
^^tke  states,  they  tried  to  form  a  "perpetual  union''  by  the 
"  Articles  of  Confederation." 

This,  however,  was  a  new  government,  not  so  much  over  the 
people  as  over  the  states,  the  creations  of  the  people.  They 
neither  well  understood  how  to  make  it,  nor  were  they  able  to 
obtain  the  consent  of  all  the  states  to  make  it  quite  equal  to 
their  own  standard  of  excellence.  They  made  it  the  creature 
and  servant  of  the  states.  They  did  not  see  that  national  pow- 
ers must  be  the  powers  of  a  sovereign,  not  those  of  the  servant 
of  many  separate  masters.     But  they  were  wise  enough  to 


LOCAL  SELF-GOVERNMENT.  5 

recognize  its  defects  and  to  profit  by  their  experience.  Their 
statesmen  studied  the  history  and  structure  of  other  govern- 
ments, and  with  rare  good  sense  applied  the  lessons  of  his- 
tory and  philosophy  to  their  own  peculiar  condition.  How  to 
present  all  the  states  as  an  indivisible  nation  to  the  world, 
and  yet  remain  separate  republics  with  respect  to  each  other ; 
how  to  give  to  each  state  the  united  support  and  protection 
of  all  the  states,  and  not  sacrifice  the  autonomy  of  any  state, 
became  the  master  problem.  Circumstances  happily  con- 
spired with  experience,  good  sense,  and  practical  statesman- 
ship to  aid  in  its  solution. 

Nevertheless,  when  the  government  for  national  purposes 
was  established  by  the  Constitution,  local  self-government,  as- 
suming the  name  of  State-sovereignty,  began  to  take  alarm 
lest  it  should  perish  by  the  encroachment  of  the  larger  govern- 
ment. The  alarm  was  magnified,  and  time,  experience,  and 
strife  were  necessary  to  show  clearly  the  distinctions  between 
the  functions  of  the  two  governments,  and  to  prove  that  both 
are  essential  parts  of  one  excellent  system.  Finally  it  has  been 
made  to  appear  that  the  national  government  is  a  necessary 
guarantee  of  proper  local  self-government,  and  that  any  ten- 
dencies to  hurtful  encroachment  may  be  corrected  within  the 
Constitution,  or  in  extreme  cases  by  amendment  of  it. 

The  study  of  the  development  of  self-government  in  the 
United  States  throws  light  upon  the  same  experiment  in 
other  countries.  When  the  French  Revolution  broke  out  in 
1789,  the  government  of  the  United  States  under  the  Consti- 
tution had  just  begun  operation.  The  French  people,  at  least 
the  educated  classes,  were  familiar  with  the  completed  work. 
They  were  entirely  familiar  with  the  most  approved  theories 
of  the  right  of  the  people  to  govern  themselves,  and  of  the 
methods  of  doing  it.  These  theories  had  been  the  favorite 
studies  of  French  philosophers,  and  our  own  statesmen  had 
been  greatly  instructed  by  their  precepts.  Indeed,  we  owe 
much  to  Montesquieu,  the  celebrated  author  of  the  "  Spirit  of 
the  Laws."  His  precepts  of  political  science  illuminated  and 
instructed  the  minds  of  Madison,  Hamilton,  Randolph,  Wil- 
son, and  their  co-laborers  in  the  Federal  Convention.  The 
writings  and  speeches  of  these  men,  and  the  Constitution  it- 


6  CONSTITUTIONAL  HISTORY. 

self,  afford  ample  proof  of  the  great  influence  of  Montesquieu. 
Rousseau  impressed  Jefferson  with  his  precepts  and  enthusi- 
asm, and  the  Declaration  of  Independence  witnesses  his  influ- 
ence. But  our  fathers  had  the  practical  training  in  self-gov- 
ernment which  the  French  had  not,  and  hence  they  better 
knew  how  far  it  was  safe  to  put  theories  to  the  test  of  prac- 
tice, and  to  trust  a  people,  accustomed  to  the  exercise  of 
power,  to  its  broader  exercise.  Hence  independence  here 
was  a  success  from  the  day  of  its  declaration,  while  in  France, 
liberty  rapidly  degenerated  into  license,  and  the  worst  of 
crimes  were  perpetrated  in  its  name.  It  was  not  until  1870 
that  a  republic  was  really  established  there,  if,  indeed,  we  can 
be  quite  sure  that  it  is  now  established.  No  doubt,  we  owe 
our  success  largely  to  our  preliminary  training. 

A  constitution  implies  or  enumerates  the  powers  which 
sovereignty  exercises,  or  is  permitted  to  exercise.  Many 
efforts  have  been  made  to  define  "  sovereignty."  Practically, 
it  consists  in  the  power  to  originate  and(secure  the  perform- 
ance of  -all  governmental  acts. 

The  powers  of  sovereignty  in  the  United  States  are  par- 
celled between  the  nation  and  the  state  by  the  creators  of  sov- 
ereignty itself,  that  is  by  the  people.  The  parcel  allotted  to 
one  government  is,  with  few  and  not  important  exceptions, 
not  used  by  the  other.  The  United  States  is  sovereign  in 
certain  particulars.  The  states  are  sovereign  in  certain  other 
particulars.  The  people  are  the  creators  of  all  these  powers. 
The  people  have  enumerated  or  defined  them,  and  distrib- 
uted and  deposited  them  among  the  two  governments.  While 
they  remain  deposited  they  are  not  retained  by  the  people. 
What  the  people  have  retained  is  the  power  to  resume  and 
modify,  restrict  or  enlarge  them,  and  redistribute  and  rede- 
posit  them.  The  permanency  of  the  deposit  of  sovereign 
powers  without  change  or  readjustment  rests  upon  the  wis- 
dom and  eflBciency  with  which  they  are  exercised.  »Each  sov- 
ereignty has,  or  ought  to  have,  the  powers  necessary  for  the 
complete  performance  of  its  functions,  and  the  functions  of  the 
one  should  not  conflict  with  those  of  the  other. 

A  constitution  may  be  written,  as  it  is  in  the  United  States, 
or  unwritten,  as  in  Great  Britain.     In  a  certain  sense,  every 


SOVEREIGNTY  AND  CONSTITUTIONS.  7 

people,  tribe,  association,  or  family  in  whicli  government  is 
administered  has  a  constitution.  The  power  of  one  to  exact 
obedience  from  another  implies  the  existence  of  some  rule  or 
law  conferring  the  right  to  command,  imposing  the  duty  of 
obedience,  and  reciprocally  imposing  upon  the  governor,  cap- 
tainf  chief,  or  father  the  duty  of  protection,  and  conferring 
upon  the  follower,  associate,  subject,  or  child  the  right  to 
claim  justice  and  protection.  These  powers  and  duties  are 
usually  under  unwritten  constitutions  very  imperfectly  de- 
fined; the  struggle  of  modern  times  has  been  to  so  adjust  and 
define  the  powers  of  the  governors  as  best  to  promote  the 
happiness  of  the  governed. 

The  word  "  constitution,"  as  employed  in  modern  times,  usu- 
ally means  a  system  of  government  in  which  the  people  have 
some  share  in  making  the  laws.  Thus,  every  government  of 
Europe  is  now  a  constitutional  government,  except  those  of 
Russia  and  Turkey.  Some  local  ofl&cers  are  elected  by  the 
people  in  Russia.  Brazil  is  the  only  monarchy  in  America, 
and  Brazil  has  a  Senate  and  Assembly  chosen  by  the  people. 
Most  European  constitutions  are  usually  found  written  in 
some  law  which  the  king  or  ruler  has  been  graciously  pleased 
to  approve,  conferring  this  power  upon  the  people,  usually  to 
be  represented  in  the  lower  chamber  of  the  law-making  body. 

A  republican  constitution  is,  or  ought  to  be,  that  funda- 
mental regulator  of  sovereign  power  which  assigns  the  proper 
measure  of  authority  to  the  governors,  and  the  proper  meas- 
ure of  liberty  to  the  people.  The  problem  is,  so  to  confer 
authority,  and  so  reserve  liberty,  that  each  shall  serve  as  a 
check  or  balance  upon  the  other,  and  that  each,  without  be- 
ing dangerous  in  itself,  may  help  and  not  encroach  upon  the 
other. 

Theoretically,  the  Constitution  of  Great  Britain  is  the 
result  of  the  gradual  growth  of  customs,  so  long  established 
that  the  memory  of  man  does  not  recall  their  origin,  so  wise 
that  they  command  the  common  assent  of  the  good,  and  so 
well  known  that  their  record  is  unnecessary.  It  is  gener- 
ally known  that  the  real  administration  of  that  kingdom  is 
controlled  by  the  party  in  power  as  represented  in  the  House 
of  Commons.     The  leader  of  the  party  becomes  prime  minis- 


''.> 


8  CONSTITUTIONAL  HISTORY. 

ter,  and  the  prime  minister,  with  the  associates  that  he  places 
in  his  cabinet,  becomes  what  is  called  the  government.  When 
this  government  loses  the  confidence  of  the  House  of  Com- 
mons, it  resigns,  and  a  government  enjoying  that  confidence 
takes  its  place  and  rules  the  kingdom.  And  yet  there  is  no 
written  law  that  prescribes  this  most  important  system  of 
parliamentary  government.  It  has  in  the  course  of  a  few 
generations,  by  a  very  natural  development,  absorbed  all  the 
governmental  powers  of  royalty.  The  power  that  remains 
to  the  queen  is  the  power  to  be  an  imposing  fiction.  If  the 
queen  should  be  superseded  by  a  statue  of  John  Bull,  whose 
assent  to  the  will  of  the  Parliament  should  be  inferred  from 
its  silence,  it  would  be  difficult  to  distinguish  between  its 
governmental  powers  and  hers. 

The  laws  of  Parliament  are  omnipotent,  but  no  written  law 
confers  the  power  upon  Parliament  to  make  the  laws.  The 
Constitution  is  subject  at  any  time  to  change  by  the  law-mak- 
ing power.  Its  real  protection  from  change  is  in  the  conser- 
vatism of  that  power  and  of  the  people.  That  conservatism 
has  hitherto  proved  an  ample  protection.  Such  a  reliance 
would  be  unsafe  in  this  country.  We  seem  to  need  written 
constitutions  which  shall  plainly  define  and  assert  the  limits 
of  the  law-making  and  other  powers.  The  tendency  of  our 
legislators  is  usually  in  the  direction  of  innovation,  not  of  con- 
servatism ;  we  need  constitutional  limitations  to  restrain  our 
governmental  rashness,  not  to  say  rawness.  Our  statesmen 
lack  the  conservative  self-poise,  or,  if  you  please,  self-compla- 
cency, of  the  educated  Englishman,  who  has  been  trained  in 
the  school  of  her  Majesty's  government.  He  feels  the  in- 
fluence of  his  training,  and  respects  the  stability  of  the  ante- 
cedent centuries  of  his  country's  repose.  For  him  to  be  rash 
would  be  a  reflection  upon  the  traditions  and  systems  of 
which  he  regards  himself  a  part.  Here  men  pass  from  pri- 
vate to  public  employment,  with  but  little  knowledge  of  gov- 
ernmental principles,  and  it  is  needful  to  fence  them  in  with 
the  limitations  which  wiser  men  have  devised. 

If  our  national  Constitution  were  to  be  amended  to-day 
by  our  wisest  men,  they  would  probably  write  in  it  more  re- 
straints upon  the  law-making  power.     Possibly  this  tendency 


GOVERNMENT  BY  LAW.  9 

of  the  American  legislator,  to  go  straightway  to  the  outer- 
most verge  of  the  constitutional  limit,  has  been  stimulated 
by  the  fact  that  the  limit  has  been  set ;  and  the  Englishman's 
tendency,  not  to  pass  beyond  the  long  respected  limits,  has 
been  caused  by  the  consciousness  that  he  has  the  power  to  do 
mischief,  and  may  do  it  if  he  is  not  careful.  The  American 
beats  against  the  constitutional  barrier,  the  Englishman  care- 
fully confines  himself  within  it ;  the  one  is  impatient  of  the 
restraints  that  confine  him,  the  other  sets  restraints  upon 
himself. 

We  come  thus  to  a  leading  principle  in  American  govern- 
ment. It  rests  as  much  as  possible  upon  the  laws,  and  as 
little  as  possible  upon  men.  We  are  apt  to  think  that  that 
principle  is  of  fundamental  soundness  and  safety.  If  the  laws 
are  wise  and  right,  it  makes  very  little  difference  to  the  people 
by  whom  they_are  administered,  so  long  as  it  is  honestly  and 
efficiently  done.  If  we  had  a  Gladstone  or  a  Bismarck  at  the 
head  of  our  government,  we  should  be  no  better  off  than  we 
are  with  President  Cleveland,  or  Harrison,  or  any  othen  fair 
man  of  good  intelligence.  The  Constitution  and  laws  hav- 
ing been  made,  we  ask  that  they  shall  be  carefully  observed. 
Thus  the  Constitution  and  the  laws  are  our  real  rulers  ;  the 
men  who  for  the  time  being  are  at  the  head  of  the  govern- 
ment are  the  servants  of  the  laws,  and  are  simply  called  upon 
to  see  that  they  are  properly  respected  and  administered. 
And  so,  it  may  well  be  that  it  is  even  better  to  have  as  rulers 
honest  men  of  moderate  ability,  who  will  strive  diligently  to 
know  their  duty  and  to  do  it,  than  to  have  men  of  higher 
capacity,  whose  consciousness  of  their  great  abilities  might 
tempt  them,  in  the  interest  of  their  ambition,  to  leave  the  old 
and  safe  ways,  and  experiment  in  new  and  dangerous  ones. 

Some  reference  to  the  respective  functions  of  the  national 
and  state  governments  may  be  useful  before  we  enter  upon 
the  history  of  the  Constitution  and  its  practical  application 
to  the  government  of  the  nation  and  states. 

The  relations  which  the  United  States  holds  to  the  states 
are  peculiar.  The  United  States  can  hardly  be  said  to  have 
physical  existence.  It  is  rather  a  power  than  a  body  —  a 
power  like  gravitation,  compelling  stability  and  order,  and 


10  CONSTITUTIONAL  HISTORY. 

most  felt  when  most  resisted.  It  holds  a  small  township  on 
the  Potomac,  where  are  situated  its  principal  public  build- 
ings and  the  headquarters  of  its  chief  oflBcers.  The  imperial 
domain  of  the  continent  is  parcelled  among  the  states,  exist- 
ing or  to  exist.  The  United  States,  it  is  true,  owns  land  in 
the  territories,  and  in  some  of  the  states,  but  this  it  purposes 
to  sell,  and  then  the  states  will  govern  those  who  occupy  it. 
It  cannot  buy  land  in  an}^  state  upon  which  to  erect  a  fort  or 
public  building,  without  obtaining  the  "  consent  of  the  legis- 
lature of  the  state."  In  short,  it  is  a  great  corporation,  of 
which  every  person  within  the  states  and  territories  is  a  mem- 
ber. It  is  itself  invisible,  but  its  power  and  influence  are  al- 
ways and  everywhere  present.  We  confide  in  its  presence 
and  power,  though  we  have  no  need  or  desire  to  invoke  or 
witness  them.  Silent,  invisible,  and  motionless,  until  needed  ; 
then  its  force,  obedient  to  the  written  law,  regulates,  controls, 
and  protects. 

The  government  which  most  affects  us  is,  however,  com- 
mitted to  the  state.  Our  lives,  liberty,  character,  and  prop- 
erty are  mainly  under  the  protection  of  the  state  laws.  The 
/  state  regulates,  so  far  as  governmental  regulation  is  necessary, 
our  local  and  domestic  affairs.  If  one  is  injured  in  his  per- 
son, property,  or  character,  he  looks  to  the  state  government 
for  redress.  He  buys  and  sells ;  is  married  or  divorced ;  estab- 
lishes schools,  churches,  manufactories,  and  railroads ;  makes 
his  will ;  inherits  property ;  organizes  societies  and  corpora- 
tions, under  the  state  laws.  Shall  property  descend  to  the 
oldest  son,  or  to  all  the  children  equally  ?  Shall  any  limita- 
tions be  placed  upon  the  power  to  make  a  will,  upon  mar- 
riage, upon  the  sale  of  liquor,  upon  the  right  to  vote,  upon 
the  hours  of  labor,  upon  the  age  at  which  children  shall  be 
hired  to  perform  it,  or  upon  carrying  on  dangerous  or  un- 
healthful  occupations?  These  are  questions  committed  to 
the  state ;  and,  in  these  matters,  recourse  must  be  had  to  the 
state  courts  for  the  enforcement  of  rights,  or  the  prevention 
of  abuses,  whenever  any  contention  arises  between  citizens 
of  the  same  state.  These  instances  illustrate,  but  do  not  ex- 
haust, the  subjects  committed  to  state  regulation.  In  short, 
the  state  has  every  governmental  power  except  those  which 


DUAL  SYSTEM  OF  GOVERNMENT.  11 

fall  within  three  exceptions,  namely :  First,  the  powers  com- 
mitted to  the  United  States  as  enumerated  in  the  United 
States  Constitution.  Second,  the  powers  denied  by  that  Con- 
stitution to  the  state.  Third,  the  powers  denied  by  the  state 
constitution  itself  to  its  own  government. 

These  exceptions  are  involved  in  and  will  be  unfolded  in 
the  discussion  which  will  follow. 

To  illustrate  the  powers  which  are  delegated  to  the  United 
States  and  are  not  exercised  by  the  states :  You  go  to  the  post- 
office,  and  mail  or  receive  a  letter,  and  you  are  dealing  with 
the  United  States.  For  a  two-cent  stamp  your  letter  can  be 
carried  to  California,  or  any  other  state ;  for  a  five-cent  stamp 
to  any  country  in  Europe.  It  is  much  better  that  one  govern- 
ment should  regulate  this  business  than  many.  New  York 
might  have  one  rate  of  postage,  Pennsylvania  another,  and 
every  state  its  own  system  of  carriage,  and  it  would  be  diflB- 
cult  to  tell  how  much  it  would  cost,  or  how  long  it  would  take 
to  get  your  letter  to  California.  The  United  States  can  do  it 
so  much  better  for  every  state,  and  can  so  much  better  make 
the  necessary  regulations  with  foreign  countries,  that  we  con- 
cede at  once  that  in  this  respect  the  United  States  is  a  useful 
creation.  The  United  States  regulates  commerce  with  for- 
eign nations  and  among  the  several  states.  This  makes  the 
navigation  laws  uniform  at  every  port,  and  the  rate  of  duties 
uniform.  It  prevents  one  state  from  making  a  discriminating 
tax  against  the  products  of  another  state.  Practically,  it  re- 
sults in  free  trade  between  the  states.  The  United  States 
makes  the  treaties  with  foreign  powers.  It  coins  money  and 
establishes  its  value,  so  that  money  is  of  equal  value  in  every 
state.  It  maintains  the  army  and  navy,  declares  war  and 
establishes  peace,  and  guarantees  to  every  state  a  republican 
form  of  government.  It  is  plain  that  these  great  powers  are 
better  intrusted  to  one  government  than  to  many,  simply  as 
a  matter  of  convenience.  But  it  is  also  necessary  that  these 
powers  shall  be  exercised  by  a  government  that  has  the 
strength  to  enforce  them  ;  and  in  that  view  the  United  States 
is  many  times  more  powerful  than  the  average  single  state. 
You  are  citizens  of  the  state  in  which  you  reside,  but  you  are 
also  citizens  of  the  United  States.     When  you  travel  abroad 


12  CONSTITUTIONAL   HISTORY. 

your  citizenship  of  your  state  might  not  prove  adequate  to 
your  protection ;  but  citizenship  of  the  United  States  implies 
that  you  may,  if  necessity  properly  requires  it,  invoke  the 
protection  of  the  united  strength  of  all  the  states.  And  the 
fact  that  this  is  so  will  make  it  unnecessary  for  you  to  invoke 
it.  Might  can  compel  right,  but  the  knowledge  that  the 
might  exists  is  usually  the  only  compulsion  necessary.  More- 
over, it  costs  less  to  provide  one  strong  army  for  all,  than  so 
many  separate  armies. 

The  United  States  has  not  had  committed  to  it  a  great 
many  powers.  I  have  already  enumerated  the  most  impor- 
tant of  them.  The  number  is  limited,  for  none  were  given 
to  it  which  were  not  thought  to  be  of  general  necessity,  con- 
venience, and  usefulness.  But,  generally  speaking,  the  pow- 
ers committed  to  it  are  exclusive  and  supreme.  In  order  to 
execute  them  efficiently,  great  detail  of  operations  has  been 
found  to  be  useful.  From  the  multitude  of  details,  as  we 
read  about  them  in  the  newspapers,  we  are  led  to  think 
that  the  nation  overshadows  the  states.  But  in  fact  this  is 
not  so.  If  we  pay  careful  attention,  we  shall  see  that  it  is 
the  habit  of  the  daily  press  to  go  largely  into  the  small  de- 
tails of  the  action  of  the  President  and  of  the  great  officers 
of  state  at  Washington.  The  people  are  interested  in  these 
trifles,  perhaps  more  than  in  great  affairs.  The  fact  is  not 
unworthy  the  notice  of  the  practical  statesman.  He  ought  to 
know  to  what  extent  the  people  are  interested  in  gossip  and 
trifles.  Nor  should  he  despise  the  smaller  matters,  which 
give  pleasure  and  satisfaction  and  do  no  injury.  But  the 
United  States  is  not  the  real  governor  or  ruler  of  the  people. 
The  affairs  committed  by  the  Constitution  to  its  control  are 
too  few  for  that.  Its  direct  governing  powers  are  limited  to 
the  measures  necessary  to  give  it  complete  control  of  its  own 
departments  and  agencies.  Thus,  if  one  defrauds  the  revenue, 
counterfeits  the  coin,  robs  the  mail,  violates  the  rights  con- 
ferred, or  regulations  imposed,  by  the  laws  of  the  United 
States,  or  resists  its  authority,  he  will  feel  the  force  of  the 
government  of  the  United  States.  Indirectly,  through  the 
appellate  jurisdiction  of  the  Supreme  Court,  in  the  cases 
enumerated  in  the  Constitution,  the  United  States  influences 


MAGNITUDE  OF  NATIONAL  DEPARTMENTS.  13 

the  action  of  the  state  governments,  and  prevents  their  inter- 
ference in  the  national  affairs,  and  sometimes  remedies  the 
injustice  done  by  the  state  to  its  citizens.  But  this  influence 
over  the  government  of  a  state  is  not  any  suspension  of  that 
government.  Its  governmental  functions  may  be  corrected, 
without  being  in  the  least  impaired.  The  greater  part  of  the 
government,  certainly  that  which  most  usually  and  nearly 
affects  us,  is  exercised  by  the  states.  Our  interests  centre  in 
domestic  and  local  affairs.  We  are  interested  in  the  concerns 
of  our  neighborhood,  town,  county,  and  state.  Aside  from 
the  post-office  officials,  we  rarely  come  in  contact  with  a  fed- 
eral officer,  except  now  and  then  a  military  or  naval  officer  on 
leave  of  absence.  If  we  take  an  interest  in  moral,  social, 
educational,  or  humanitarian  reforms,  the  nation  cannot  law- 
fully help  us ;  our  field  is  the  state  or  under  its  favor. 

With  the  great  growth  of  the  nation,  the  interests  com- 
mitted to  its  care  and  control  have  grown  to  be  great.  Our 
foreign  relations  are  extended  to  every  civilized  nation ;  our 
commerce  and  commercial  relations  are  world-wide  ;  our  rev- 
enue system  brings  to  the  treasury  nearly  one  million  dollars 
a  day ;  our  postal  system  reaches  every  hamlet  in  the  United 
States,  and  unites  with  other  systems  that  extend  around  the 
globe.  Should  foreign  or  domestic  war  require  it,  our  little 
army  would  enlarge  to  mighty  hosts,  our  navy  expand  with 
the  magic  that  skill  and  energy  and  money  would  evoke. 
But  in  times  of  peace,  all  these  national  agencies  move  on  in 
the  grooves  that  time  and  natural  growth  and  routine  have 
formed.  The  treasury,  postal,  and  foreign  departments  are 
great  organisms.  The  officers  in  charge  preside  over  the 
operations  of  these  organisms.  They  are  intelligent  men,  if 
in  their  short  terms  of  office  they  come  to  a  full  knowledge 
of  the  systems,  which  have  been  established  pursuant  to  law, 
and  developed  and  perfected  under  the  direction  of  their 
predecessors. 

To  a  great  extent,  also,  the  executive  department  is  man- 
aged in  conformity  with  long  established  system.  The  Presi- 
dent must  do  what  the  usages  of  his  office  require.  The  great 
executive  offices  have  grown  to  be  greater  than  any  officer  in 
them.     If  these  offices  are  at  first  established  upon  the  proper 


14  CONSTITUTIONAL  HISTORY. 

basis,  their  subsequent  operation  is  simple ;  their  expansion 
with  the  increase  of  business  is  a  natural  growth.  System 
becomes  king  under  a  government  of  law.  The  law  directs  ; 
that  direction  never  changes  if  the  law  is  stable  ;  the  initial 
operation  of  the  law  once  properly  systematized,  thenceforth 
established  precedent  is  followed,  and  subordinates  can, tread 
the  steps  of  the  revolving  wheel. 

The  English  criticism  upon  our  Constitution  is,  that  it  is 
written,  and  therefore  unchangeable  except  by  amendment ; 
that  experience  shows  that  amendment  is  rarely  attempted, 
because  difficult  to  be  accomplished  ;  that  therefore  the  great 
nation  of  to-day  is  cramped  within  the  charter  framed  a  cen- 
tury ago ;  a  charter  which,  however  well  it  may  have  been 
adapted  to  a  small  people,  with  few  needs  and  imperfect  de- 
velopment, must  necessarily  be  ill  adapted  to  a  great  people, 
with  great  needs,  great  resources,  and  great  development.  In 
other  words,  the  garment  made  for  the  infant  in  its  cradle 
must  do  service  for  the  giant  in  his  strength. 

This  criticism  seems  plausible,  but  it  is  unjust.  To  change 
the  figures  lightly  :  The  child  is  father  to  the  man.  The  in- 
fant in  its  cradle  becomes  the  giant  in  manhood,  with  the 
same  members,  organs,  powers,  and  functions.  If  these  are 
perfect  in  their  germ,  maturity  develops  but  does  not  multi- 
ply them.  The  powers  conferred  by  the  Constitution  a  cen- 
tury ago  remain  unchanged.  Time  has  expanded  and  de- 
veloped, but  has  not  multiplied  them. 

Their  expansion  and  development  have  been  sufficiently 
ample  to  embrace  every  subject  that  ought  to  be  brought 
within  the  scope  of  national  influence  and  control.  Foreign 
criticism  takes  little  note  of  that  great  body  of  governmental 
powers  which  are  reserved  to  the  states,  or  may  be  committed 
by  the  people  to  them,  and  with  which  the  nation  has  noth- 
ing to  do.  Reforms  in  the  laws  and  in  the  methods  of  do- 
mestic government  are  matters  of  state  concern.  England 
has  not  refused  to  reform  her  laws  and  methods  of  govern- 
ment, following  in  many  important  particulars  the  examples 
which  have  been  given  her  by  the  states  of  the  Union.  The 
powers  reserved  to  the  people  in  these  respects  embrace 
nearly  every  governmental  power  essential  to  a  wise  and  lib- 


HARMONY  OF  THE  TWO  SYSTEMS.  15 

eral  government.  The  Constitution  of  the  United  States 
enjoins  and  promotes,  instead  of  restricting,  the  best  possible 
republican  domestic  government  which  the  people  can  devise 
for  their  respective  states. 

The  hostile  foreign  critic  seems  scarcely  able  to  understand 
that,  while  the  nation  retains  its  Constitution  as  framed  a 
hundred  years  ago,  the  several  states  are  studious  to  attain  in 
their  domestic  government  the  best  results  of  the  experience 
of  the  nineteenth  century.  Hostile  criticism,  to  be  just,  must 
examine  our  dual  system  of  government ;  and,  conceding  that 
the  states  are  unfettered  in  their  domestic  governments,  must 
show  that  the  growth  of  the  nation  has  demonstrated  the 
need  of  national  powers  for  which  our  Constitution  does  not 
provide. 

The  American  critic,  better  instructed  in  this  double  sys- 
tem of  government,  is  not  slow  to  conclude  that  the  nation, 
under  the  Constitution,  is  now  equipped  with  powers,  ample 
and  adequate  for  all  its  needs  and  purposes  ;  and  that  they 
could  not  be  multiplied  without  a  surrender  by  the  people 
and  the  states  of  powers  which,  in  the  hands  of  the  nation, 
might  prove  dangerous  to  their  liberties. 

This  conclusion  must  impress  him  with  profound  admira- 
tion for  the  wisdom  of  the  framers  of  the  Constitution.  They 
felt  that  they  were  making  an  experiment ;  but  time,  growth, 
development,  expansion  of  territory,  a  new  era  of  immigra- 
tion, enterprise,  and  invention,  alike  attest  the  adequacy  and 
completeness  of  the  powers  granted,  and  the  aptness  and  ac- 
curacy of  their  enumeration. 

With  the  lapse  of  the  century,  the  national  government 
has  grown  to  fill  its  constitutional  place.  The  state  govern- 
ments experience  now  what  they  failed  to  do  at  first,  —  a  sense 
of  their  security  and  freedom  under  the  protection  of  the  na- 
tion. They  are  freed  from  the  care  of  foreign  and  national 
affairs ;  they  have  become  stronger,  wiser,  and  better  from 
the  international  association  with  each  other.  Assured  of 
their  position  and  powers,  they  govern  the  people  wisely  and 
happily. 

It  will  be  instructive  to  trace  some  of  the  more  important 
steps  by  which  our  national  government  passed  from  theory 


16  CONSTITUTIONAL  HISTORY. 

into  practice;  and  to  recount  some  of  the  difficulties,  con- 
troversies, and  dangers  through  which,  as  through  a  school  of 
instruction  and  discipline,  both  states  and  nation  have  come 
the  better  to  know,  respect,  and  help  each  other,  and  to- 
gether form  a  harmonious  government,  for  the  benefit  of  the 
governed. 

The  new  government  under  the  new  Constitution  went  into 
operation  as  an  experiment.  It  was  a  mere  scheme  upon 
paper,  and  its  power  to  become  useful  or  to  continue  to  exist 
had  to  be  demonstrated  by  the  result.  The  powers  conferred 
upon  the  new  government  were  enumerated,  but  not  defined. 
Their  definition  would  ultimately  depend  upon  the  extent  to 
which  it  would  be  prudent  or  practicable  to  assert  and  em- 
ploy them.  Skill,  courage,  and  energy  would  make  good  a 
broad  definition.  Timidity,  cowardice,  or  disloyalty  would 
shrivel  them  into  insignificance.  The  practical  test  might 
make  or  ruin  all. 

It  is  a  curious  reflection  that  the  United  States  govern- 
ment, to  begin  with,  was  nothing  but  a  few  sheets  of  paper, 
lying  in  the  drawer  of  the  secretary  of  the  confederate  Con- 
gress, with  about  five  thousand  words  written  on  them. 
Would  the  words  ever  have  life,  substance,  strength,  signifi- 
cance, supremacy? 

*  The  hostility  of  the  states  was  to  be  a  constant  danger 
from  1789  until  the  close  of  the  late  civil  war.  The  claims 
of  state- sovereignty,  state-rights,  and  the  consequent  hostility 
of  the  states,  were  to  mark  the  divisions  between  parties,  to 
determine  the  election  of  officers,  the  fortunes  of  statesmen, 
the  fate  of  measures  proposed  or  undertaken.  That  hostility 
would  threaten  again  and  again  the  integrity  of  the  Union, 
until  finally,  joining  hands  with  the  institution  of  slavery,  it 
would  strike  at  the  nation's  life,  but  slavery  would  be  de- 
stroyed, hostility  disarmed,  and  the  Union,  at  last,  trium- 
phantly established. 

The  deadly  blow  was  fortunately  delayed  too  long.  With 
time,  the  benefits  resulting  from  the  national  power  grew 
more  and  more  obvious.  Time  is  the  wisest  of  all.  As  the 
nation  managed  to  live,  time  took  its  part  and  multiplied  its 
friends  ;  it  gave  steadfastness  to  new  institutions,  and  but- 


GROWTH   OF  PATRIOTISM.  IT 

tressed  them  with  political  habits,  and  long  associations. 
Those  who  participated  in  the  contentions  that  .centred 
around  the  foundations  of  the  government  passed  away. 
Younger  generations  came  on,  strangers  to  the  bitterness  and 
distrust  of  their  fathers.  They  conceived  a  love  for  the  Union, 
and  a  devotion  to  it,  which  sufficed  to  carry  it  through  a  sea 
of  troubles. 

Note.  —  While  these  pages  are  in  the  hands  of  the  printer,  "  The  American 
Commonwealth,"  by  James  Bryce,  M.  P.,  appears.  It  is  a  very  full  and  appre- 
ciative presentation  and  exposition  of  our  systems  of  government  and  of  their 
practical  operations.  It  certainly  must  be  excepted  from  the  remark  in  the  text, 
that  foreign  critics  do  not  seem  to  understand  clearly  the  separate  functions  of 
our  national  and  state  governments,  and  the  ready  adaptability  of  the  latter  to 
the  changes  which  experience  suggests.  Mr.  Bryce  has  written  in  an  admirable 
spirit  of  candor  and  fairness,  and  his  criticisms,  in  which  he  lays  bare  many  of  our 
shortcomings  in  national,  state,  and  municipal  administration  and  legislation, 
deserve  our  candid  consideration.  He  commends  in  the  main  our  national  and 
state  systems,  and  where  he  has  occasion  to  find  fault  with  any  of  their  parts,  he 
does  so  in  a  kindly  manner,  and  usually  softens  his  implied  severity  by  indul- 
gently conceding  that,  "  after  all,  the  practical  result  is  much  better  than  one 
would  naturally  expect."  He  pursues,  however,  with  something  like  the  zest  of 
a  good-natured  detective,  the  abuses  that  creep  into  the  practical  administration 
of  affairs,  especially  in  our  municipal  governments ;  nor  does  he  spare  legisla- 
tive and  other  kinds  of  official  jobbery.  "  Political  bossism  "  and  the  low  plane 
upon  which  the  political  parties  are  conducted  receive  his  severe  denunciation ; 
not  that  he  uses  denunciatory  terms,  but  because  he  has  the  faculty  of  stating 
his  facts  in  such  a  way  as  to  suggest  denunciation.  Still,  his  final  judgment  is 
that  our  resources  are  so  great,  our  right  tendencies  so  predominant,  our  patience 
under  abuses  so  excusable,  our  confidence  in  our  ultimate  extinction  of  grosser 
evils  so  well  founded,  our  respect  for  law  so  remarkable,  and  our  national  spirit 
so  patriotic,  that  we  must  have  before  us  a  long,  prosperous,  and  happy  career. 
His  closing  words  are :  "And  by  so  much  as  the  people  of  the  United  States  are 
more  hopeful,  by  that  much  are  they  more  healthy.  They  do  not,  like  their  fore- 
fathers, expect  to  attain  their  ideals  either  easily  or  soon  ;  but  they  say  that  they 
will  continue  to  strive  towards  them,  and  they  say  it  with  a  note  of  confidence  in 
the  voice  which  rings  in  the  ear  of  the  European  visitor  and  fills  him  with  some- 
thing of  their  own  hopefulness.  America  has  still  a  long  vista  of  years  stretch- 
ing before  her  in  which  she  will  enjoy  conditions  far  more  auspicious  than  Eng- 
land can  count  upon.  And  that  America  marks  the  highest  level,  not  only  of 
material  well-being  but  of  intelligence  and  happiness,  which  the  race  has  yet  at- 
tained will  be  the  judgment  of  those  who  look  not  at  the  favored  few  for  whose 
benefit  the  world  seems  hitherto  to  have  framed  its  institutions,  but  at  the  whole 
body  of  the  people." 

2 


LECTURE  II. 

Colonial  Governments  and  Liberties. —  Threatened  Aggres- 
sions OF  the  Crown.  —  Independence.  —  Formation  of  State 
Institutions. 

Before  the  Declaration  of  Independence,  July  4, 1776,  the 
colonies  afterwards  composing  the  United  States  were  depen- 
dencies of  Great  Britain.  They  were  called  colonies,  and  owed 
allegiance  to  the  British  crown.  That  allegiance  they  willingly 
paid.  It  implied  the  duty  to  aid,  if  need  were,  in  defending 
the  mother  country  against  its  enemies,  and  cooperating  to 
subdue  and  punish  them.  It  also  implied  that  Great  Britain 
should  protect  and  defend  the  colonies  from  foreign  invasion, 
and  secure  to  them  that  measure  of  good  government  which 
was  their  due  as  British  subjects,  or  was  outlined  in  their 
respective  charters.  The  colonies  willingly  lent  their  aid  in 
support  of  the  pretensions  of  England,  against  those  of  other 
European  powers,  to  the  territory  afterwards  composing  the 
United  States.  From  1754  to  1760,  France  and  England 
waged  war  for  the  dominion  of  the  North  American  conti- 
nent. More  than  25,000  sturdy  provincials  took  part  as  aux- 
iliaries to  the  British  regulars.  The  colonies  defrayed  the 
expenses  of  their  own  troops.  The  undisciplined  provincial 
received  scant  respect  or  civility  from  his  trained  and  merce- 
nary ally,  and  this  fact  contributed  not  a  little  to  the  series  of 
reverses  which,  up  to  the  year  1759,  seemed  to  promise  that 
the  English  dominion  must  give  way  to  the  superior  skill  and 
prowess  of  the  French.  But  in  that  year,  more  than  in  any 
preceding,  the  provincial  officer  and  soldier  were  rated  at  their 
proper  value,  and  the  tide  of  disaster  was  succeeded  by  victo- 
ries which,  culminating  in  the  capture  of  Quebec  by  the  young 
and  gallant  Wolfe,  gave  the  western  world  to  the  English 
race,  ideas,  language,  and  liberty.  It  is  interesting  to  specu- 
late upon  the  possible  contrary  result.     Suppose  the  French 


COLONIAL  GOVERNMENTS.  19 

bad  held  Quebec,  and  bad  continued  to  bold  the  St.  Law- 
rence River,  Lake  Champlain  and  Lake  George,  Lakes  Erie 
and  Ontario,  the  Ohio  and  Mississippi,  and,  as  was  their 
purpose,  bad  pushed  down  the  Hudson  and  held  New  York. 
Perhaps  you  and  I  would  be  Frenchmen,  and  this  lecture 
would  be  upon  the  civil  law  among  the  Latin  races,  instead 
of  upon  the  free  institutions  of  the  English-speaking  people. 
Wolfe's  capture  of  Quebec  was  one  of  the  most  marvellous 
and  eventful  successes  ever  won  by  hare-brained  and  desperate 
enterprise.  However,  it  turned  the  tide  of  Empire,  and  the 
Englisb  flag  waved  from  the  ocean  to  the  Mississippi. 

De  Tocqueville,  in  his  celebrated  "  Democracy  in  America," 
thus  laments  the  loss  of  French  ascendency  in  North  Amer- 
ica :  "  There  was  a  time  when  we  might  also  have  created 
a  great  French  nation  in  the  American  wilds,  to  counterbal- 
ance the  influence  of  the  English  upon  the  destinies  of  the 
new  world.  France  formerly  possessed  a  territory  in  North 
America  scarcely  less  extensive  than  the  whole  of  Europe. 
The  three  greatest  rivers  of  that  continent  then  flowed  within 
her  dominions.  The  Indian  tribes  which  dwelt  between  the 
mouth  of  the  St.  Lawrence  and  the  delta  of  the  Mississippi 
were  unaccustomed  to  any  other  tongue  than  ours ;  and  all 
the  European  settlements  scattered  over  that  immense  region 
recalled  the  traditions  of  our  country.  Louisburg,  Montmo- 
rency, Duquesne,  Saint  Louis,  Vincennes,  New  Orleans  (for 
such  were  the  names  they  bore),  are  words  dear  to  France  and 
familiar  to  our  ears.  But  a  course  of  circumstances  which  it 
would  be  tedious  to  enumerate  has  deprived  us  of  this  mag- 
nificent inheritance." 

Before  the  Revolution  every  colony  had  its  own  separate 
government.  The  colonies  had  no  governmental  connection 
with  each  other.  There  was,  however,  that  sympathy  which 
arose  from  the  fact  that  they  were  all  colonies  of  Great  Brit- 
ain, and  the  people  mainly  Englishmen.  Those  of  New  Eng- 
land had  leagued  together  in  the  seventeenth  century  for  com- 
mon defence  against  the  Indians. 

In  1754  the  colonies  north  of  the  Potomac  met  in  a  con- 
gress at  Albany  and  proposed  a  plan  for  a  government  for 
their  common  defence,  and  for  some  other  purposes  affecting 


20  CONSTITUTIONAL  HISTORY. 

their  general  welfare.  The  colonies  feared  it  would  encroach 
upon  their  local  governments,  and  England  feared  it  as  a  step 
towards  independence. 

Their  common  race,  language,  allegiance,  and  customs,  and 
sometimes  their  common  danger,  afforded  the  colonies  a  sort 
of  bond  of  union,  resting  in  sentiment  rather  than  law.  The 
people  were  proud  to  call  themselves  "Englishmen  away 
from  home,"  and  they  were  prompt  to  claim  all  the  rights 
and  liberties  of  English  subjects. 

Though  every  colony  had  its  own  peculiar  government, 
all  practically  became  very  much  alike.  These  governments 
were  of  three  sorts :  the  provincial,  the  proprietary,  and  the 
charter.  New  Hampshire,  New  York,  New  Jersey,  Vir- 
ginia, the  two  Carolinas,  and  Georgia  had  provincial  gov- 
ernments. They  were  provinces  very  much  as  Ontario  and 
Quebec  in  Canada  now  are.  The  king  commissioned  a  gov- 
ernor, and  appointed  his  council  to  advise  and  assist  him. 
The  commission  to  the  governor  and  the  instructions  accom- 
panying it  in  effect  constituted  the  charter  of  the  province. 
These  charters  were  at  first  frequently  altered,  but  soon  took 
about  the  following  form  :  The  governor  could  convene  a  gen- 
eral assembly  of  the  freeholders  or  planters.  This  assembly 
formed  the  lower  house,  the  council  the  upper,  and  the  gov- 
ernor, representing  the  king,  had  the  veto  power.  This  leg- 
islature had  the  power  to  make  local  laws  not  repugnant  to 
those  of  England,  and  to  impose  the  necessary  taxes.  The 
governor  could  establish  courts.  The  first  charters  did  not 
provide  for  an  assembly. 

Virginia,  the  first  province,  was  settled  in  1606.  Her  early 
charters  were  illiberal,  and  the  colony  almost  perished.  But 
concessions  were  soon  made,  and  the  people  began  to  thrive. 
As  the  colony  increased,  the  people  demanded  the  right  to 
make  their  own  laws.  In  1619,  Sir  George  Yeardley,  then 
governor,  yielding  to  their  demand,  called  a  general  assembly 
composed  of  representatives  from  the  various  plantations,  and 
permitted  them  to  exercise  the  functions  of  legislation.  This 
was  the  first  representative  legislature  that  ever  sat  in 
America.  It  is  interesting  to  notice  that  Hutchinson,  the 
colonial  historian  of  Massachusetts,  speaks  of  this  assembly  as 


COLONIAL  GOVERNMENTS.  21 

one  would  speak  of  the  smallpox  or  measles.  He  says,  "  In 
the  year  1620,  a  House  of  Burgesses  broke  out  in  the  colony." 
But  the  governing  council  in  England  recognized  and  gave  it 
permanent  sanction.  The  example  of  Virginia  was  soon  after 
followed  in  Massachusetts,  Connecticut,  New  Hampshire,  and 
Rhode  Island.  After  the  restoration  of  Charles  II.  in  1660,  i 
every  colony  had  its  assembly,  with  power  to  make  laws,  sub- 1 
ject  to  the  veto  of  the  governor,  and  subject  also  to  the  veto 
of  the  crown.  In  1695,  Parliament  enacted  that  all  colonial 
laws  repugnant  to  any  law  enacted  by  Parliament  should  be 
void. 

The  proprietary  colonies  were  Maryland,  Pennsylvania,  and   -^yv-^yP^*" 
Delaware.     That  is,  the  king  granted  a  patent  or  deed  of  the  -^ 

land  of  the  district  to  be  colonized  to  certain  persons,  to  whom 
were  confided  the  power  and  duty  of  providing,  within  cer- 
tain regulations  expressed  in  the  patent,  the  proper  govern- 
ment for  the  colony.  These  powers  were  much  the  same  as 
expressed  in  the  commissions  of  the  provincial  governors. 
Maryland  was  granted  to  Lord  Baltimore,  Delaware  to  Lord 
Delaware,  Pennsylvania  to  William  Penn.  These  proprietors 
and  their  successors  appointed  the  governors,  the  governors 
appointed  a  council,  and  the  freeholders  chose  the  assembly. 
In  Delaware  and  Pennsylvania  these  laws  were  subject  to  the 
approval  —  or  properly  the  disapproval  —  of  the  crown,  but 
in  Maryland  they  were  not.  Thus  the  charter  of  Maryland 
was  the  first  by  which  the  proprietor  and  the  delegates  of  the 
freemen  were  authorized  to  make  the  laws,  free  from  the  nega-  ) 
tive  of  the  crown.  *! 

At  the  time  of  the  Revolution  there  were  three  charter^  cl-^^ 
governments :  Massachusetts,  Connecticut,  and  Rhode  Island. 
These  charters  might  with  propriety  be  called  written  consti- 
tutions. Those  of  Rhode  Island  and  Connecticut  were  repub- 
lican in  form,  and  so  well  adapted  to  the  views  of  the  people 
that  when  those  colonies  became  states,  they  continued  their 
charters  as  state  constitutions.  Charles  II.  granted  a  charter 
to  the  colony  of  Connecticut  in  1662.  That  charter  contin- 
ued as  its  constitution  until  1818.  The  same  king  in  1663 
granted  a  charter  to  Rhode  Island,  and  that  charter  remained 
the  constitution  of  colony  and  state  until  1842.     Both  of  these 


22  CONSTITUTIONAL  HISTORY. 

colonies  were  formed  by  emigrants  from  Massachusetts,  who 
established  their  own  governments  without  any  authority  from 
the  crown,  and  afterwards  procured  the  charters  which  con- 
ferred the  same  authority  they  had  already  exercised.  These 
charters  conferred  the  power  of  government  upon  the  people. 
The  people  elected  their  governors  and  assemblies,  and  the 
king  reserved  no  power  to  veto  their  laws.  These  facts  are 
of  great  significance.  The  king  by  his  own  free  gift,  and  pos- 
sibly without  reflecting  upon  what  he  did,  —  certainly  without 
reflecting  upon  the  momentous  influence  of  the  example,  —  es- 
tablished two  republican  governments  in  America.  Probably 
there  did  not  then  exist  a  human  being  capable  of  estimating 
the  influence  and  consequence  of  that  careless  act  of  the  king. 
Is  it  at  all  strange  that  when,  more  than  a  hundred  years  later, 
the  American  people  came  to  form  governments  for  them- 
selves, the  republics  of  Connecticut  and  Rhode  Island  should 
be  found  to  present  examples  worthy  to  be  followed  ? 

The  New  England  town  meetings  greatly  aided  in  develop- 
ing republican  institutions  in  America.  Connecticut  furnishes 
a  striking  example  of  their  influence.  The  towns  of  Windsor, 
Wethersfield,  and  Hartford  were  first  organized  as  towns, 
and  then  each  town  sent  its  delegates  to  a  meeting  of  the 
towns,  not  for  the  purpose  of  organizing  a  colony  which  should 
be  superior  to  the  towns,  but  which  should  be  the  more  efii- 
cient  instrument  to  execute  their  will.  In  other  words,  the 
colony  was  the  arm  of  the  towns  in  the  cases  in  which  the 
towns  needed  to  put  all  their  strength  in  a  single  arm,  and 
upon  this  foundation  the  colony  and  state  were  erected  ;  thus 
the  government  of  the  people  was  as  near  the  people  as  pos- 
sible ;  and  this  also  furnished  the  model  upon  which  the  gov- 
ernment of  the  United  States  was  afterwards  formed. 

The  charter  of  Massachusetts,  granted  by  William  and 
Mary  in  1692,  was  not  so  liberal  in  its  provisions.  The  peo- 
ple of  Massachusetts  were  often  irritated  by  its  restrictions, 
and  the  harsh  manner  in  which  they  were  enforced.  It  is  not 
unlikely  that  these  irritations  were  aggravated  by  comparison 
with  the  freedom  accorded  to  Rhode  Island  and  Connecticut. 
Certain  it  is  that  the  people  of  Massachusetts  took  all,  and 
probably  more  than  all,  the  liberty  their  charter  accorded 


COLONIAL  LIBERTIES.  23 

tliera.  The  fewer  the  rights  and  privileges  conceded  by  the 
charter,  the  greater  was  the  number  claimed  by  the  people 
as  the  inherent  rights  and  privileges  of  Englishmen.  The 
provisions  of  the  charter  grew  by  construction  and  usage, 
possibly  by  usurpation,  and  came  to  be  regarded  as  such  valu- 
able guarantees  of  liberty  that  when,  in  1774,  the  Parliament 
of  Great  Britain  sought  by  "  an  act  for  the  better  regulating 
the  government  of  Massachusetts  Bay,"  to  alter  the  constitu- 
tion of  that  colony  as  it  stood  under  the  charter  of  William 
and  Mary,  the  whole  continent  was  alarmed.  The  other  colo- 
nies saw  in  the  act  an  implication  of  the  right  to  take  away 
what  liberties  they  themselves  had  come  to  enjoy  under  ex- 
isting forms  of  government  —  no  doubt  many  of  them  with- 
out any  written  concession  of  right  on  the  part  of  the  king. 

New  York,  first  named  New  Netherland,  was  settled  by 
the  Dutch  in  1609,  and  was  governed  under  powers  conferred 
by  the  then  republic  of  Holland  upon  the  Dutch  West  India 
Company.  In  1664  it  fell  by  conquest  to  the  English.  There- 
after, it  had  a  provincial  form  of  government.^ 

In  New  York  the  spirit  of  liberty  was  always  strong  and 
bold.  After  the  English  superseded  the  Dutch  in  the  govern- 
ment, every  attempt  at  oppression  or  extortion  usually  re- 
sulted in  favor  of  the  people.  The  Dutch  did  not  trouble 
themselves  much  about  forms  of  government,  but  they  were 
the  descendants  of  ancestors  who  had  achieved  their  liberties  ; 
they  knew  oppression  when  it  touched  them,  and  they  would 
not  submit  to  it.     The  English  claimed  liberty  as  the  in- 

1  They  who  live  in  the  valley  of  the  Mohawk  are  sometimes  reminded  of  the 
Dutch  preoccupation  of  the  country.  The  question  came  before  the  courts. 
Who  owns  the  bed  of  the  Mohawk  River ;  the  landowners  on  each  side,  or  the 
state  ?  The  answer  was,  the  state.  Why  1  First.  Because  it  is  a  navigable 
river  or  public  highway.  Second.  Because  the  State  of  New  York  succeeded  to 
the  same  title  that  was  held  by  the  colony  of  New  York,  and  the  English  colony 
of  New  York  succeeded  to  the  same  title  held  by  the  Dutch  colony,  and  the 
Dutch  colony  held  the  same  title  which  the  republic  of  Holland  held  to  the  bed 
of  the  like  kind  of  rivers  within  its  jurisdiction.  Now,  in  Holland  the  civil  law 
prevailed  in  1664.  The  civil  law  was  the  law  of  the  Roman  Empire.  The 
Roman  law  declares  that  the  title  to  the  bed  of  a  navigable  stream  is  held  by  the 
state,  and  not  by  the  owners  of  the  land  on  the  banks  or  shores.  And  so  it  hap- 
pened that  the  title  to  property  under  the  Mohawk  River  was,  in  the  nineteenth 
century  of  the  Christian  era,  determined  by  the  laws  of  the  Roman  Empire,  pos- 
sibly of  the  age  of  Augustus. 


24  CONSTITUTIONAL  HISTORY. 

herent  right  of  the  people,  not  as  the  grace  of  the  crown. 
They  vexed  the  souls  of  the  royal  governors  by  the  constant 
assumption  of  popular  liberty.  They  did  very  much  as  they 
pleased ;  they  made  their  own  laws,  and  evaded  those  of  Par- 
liament if  they  did  not  like  them.  In  1697,  the  governor 
exclaimed  to  the  legislature,  "  There  are  none  of  you  but 
what  are  big  with  the  privileges  of  Englishmen  and  Magna 
Ghartay  Down  to  the  Revolution  the  people  held  fast  to 
their  liberties. 

But  whatever  the  actual  powers  of  the  governments  of  the 
several  colonies,  there  is  little  doubt  that  for  the  hundred 
years  before  the  Revolution,  their  people  practically  enjoyed  a 
greater  measure  of  freedom  than  did  the  English  subject  at 
home.     In  New  England  every  township  was  a  Democracy 
where  the  people  regulated  their  own  affairs  in  their  own 
way.     The  representatives,  sent  to  the  colonial  assemblies, 
spake  the  voice  and  delivered  the  votes  of  these  local  Democ- 
racies.    The  colonies  did  not  all  choose  their  own  governors, 
but  they  did  choose  their  own  assemblies,  and  these  assem- 
blies claimed  and  exercised  the  power  to  frame  the  laws.     It 
did  not  amount  to  much  that  the  king  in  some  of  the  colonies 
had  the  power  to  veto  these  laws,  so  long  as  he  did  not  exer- 
cise it.     Their  laws  were  modelled  upon  the  English  plan. 
Their  governments  consisted  of  three  departments,  the  exec- 
utive, legislative,  and  judicial;  and  there  is  not  much  reason 
to  doubt  that,  in  practical  results,  they  were  nearly  as  repub- 
lican and  as  wise  and  good  as  the  people  wished.     James  II. 
tried  to  suppress  the  colonial  legislatures,  but  the  people  man- 
aged  to   keep  or  resume  them.     Whenever   the   crown  at- 
tempted to  interfere,  the  people   remonstrated,  represented, 
and  debated  so  much,  that  the  home  government  grew  weary 
of  so  great  a  noise  over  such  small  concerns.     Besides,  the 
colonists  always  made  it  a  part  of  their  policy  to  maintain 
friendship  with  such  of  their  kindred  and  patrons  at  home  as 
would  be  able  to  give  them  a  helping  hand  at  court.     Their 
trade  connections  grew  to  be  important,  and  these  sometimes 
proved  to  be  helpful  in  governmental  matters.     There  is  not 
much  reason  to  doubt  that  our  fathers,  under  the  instruction 
of  their  interests  and  situation,  attained  a  high  degree  of  that 
worldly  wisdom  which  was  profitable  to  themselves. 


COLONIAL  LIBERTIES.  25 

Their  leading  citizens  became  learned  and  able  debaters  in 
matters  of  government.  They  naturally  came  to  the  con- 
clusion that  they  were  right  in  whatever  they  demanded  or 
resisted.  In  their  occasional  petitions  to  the  crown  they  as- 
serted broad  theories.  These  the  crown  rarely  admitted,  and 
in  practice  so  little  regarded  that  the  colonists  generally  had 
things  their  own  way.  They  spoke  of  themselves  always  as 
devotedly  loyal  to  the  crown,  and  no  doubt  they  believed 
they  were ;  but  they  were  struggling  with  hardships  and  ad- 
versity in  the  wilderness,  and  they  hoped  the  good  king 
would  graciously  condescend  to  commiserate  their  misfortunes, 
and  favor  them  with  his  kingly  offices,  and  refuse  to  believe 
any  unfriendly  charges.  The  result  generally  was,  that  they 
received  from  the  king  what  really  was  the  kindest  thing  he 
could  bestow  upon  them  —  his  neglect.  During  the  long 
struggle  in  which  Charles  I.  was  beheaded,  and  Charles  II. 
excluded  from  the  throne  and  exiled  from  the  kingdom  by 
Cromwell,  the  colonies  were  scarcely  thought  of.  Parliament 
did  indeed  pass  oppressive  navigation  acts,  and  acts  in  re- 
straint of  trade  and  manufacture.  The  object  of  these  acts 
was  to  give  to  English  shippers,  traders,  and  manufacturers 
every  possible  benefit  of  colonial  custom  ;  also  to  prevent  any 
reduction  in  the  price  of  English  land  from  colonial  produc- 
tion. These  acts  were,  however,  very  mildly  enforced,  and 
very  easily  and  constantly  evaded.  The  colonists  did  not 
greatly  complain  of  them  until  about  the  close  of  the  French 
War.  England  then  began  to  try  to  enforce  them,  but  it  was 
too  late.  These  attempts  only  added  to  the  grievances  which 
culminated  in  open  rebellion. 

One  reason  why  the  crown  granted  such  large  liberties  to 
the  colonists  at  first,  and  tolerated  the  assumption  of  larger 
liberties  by  them  so  long,  is  found  in  the  fact  that  by  the 
English  law  the  colonies  were  regarded  as  civil  corporations 
and  not  as  political  governments.  The  first  colonists  were  re- 
garded as  adventurers  making  hazardous  ventures  to  improve 
their  fortunes.  The  power  was  confided  to  them  to  estab- 
lish and  maintain  good  conduct  and  order  as  essential  to  their 
success  in  their  business  ventures.  Under  this  power  these 
civil  corporations  developed  into  political  governments.     But 


26  CONSTITUTIONAL  HISTORY. 

if  they  were  civil  corporations  the  crown  had  the  right  to  take 
their  charters  away.  This  right  would  have  remained  per- 
fect, if  the  civil  corporations  had  not  somewhere  in  the  stage 
of  their  growth  and  development  emerged  from  their  smaller 
state  as  civil  corporations  into  the  larger  one  of  political 
governments.  This  transition  and  development  were,  and 
long  had  been,  accomplished  facts.  Nevertheless,  Blackstone 
speaks  of  the  colonies  as  civil  corporations,  and  therefore  ab- 
solutely subject  to  the  disposal  of  the  crown.  Hence  the 
foundation  of  the  assumed  right  to  bind  them  in  all  things 
whatsoever. 

The  main  public  questions  that  engaged  the  attention  of 
the  colonists  among  themselves  concerned  religion  and  taxa- 
tion. The  situation  and  circumstances  of  the  people,  as  I 
shall  show  hereafter,  tended  to  overthrow  religious  intoler- 
ance. In  matters  of  taxation  they  were  true  Englishmen ; 
they  did  not  want  to  pay  anything  except  by  their  own  con- 
sent, and  their  poverty  and  inclination  restricted  its  measure. 
Land  was  so  cheap  that  nearly  every  colonist  was  a  free- 
holder, and,  what  was  important,  he  held  his  land  in  his  own 
right,  not  as  tenant  of  another.  He  was  the  monarch  of  his 
own  acres.  Take  the  world  over,  the  man  who  owns  the 
land  that  gives  him  his  support  acquires  a  sense  of  personal 
^independence  and  dignity  that  rises  to  an  exalted  height. 

In  the  New  England  colonies  education  received  early  and 
marked  attention.  Harvard  College  was  founded  in  1636, 
Yale  College  in  1700.  In  Massachusetts,  in  1647,  every  town- 
ship of  fifty  householders  was  required  to  establish  a  school 
where  reading  and  writing  should  be  taught,  and  in  townships 
of  one  hundred  householders  a  grammar  school  was  required. 
In  Connecticut,  in  1673,  it  was  enacted  that  every  township 
which  numbered  fifty  householders  should  forthwith  appoint 
one  within  the  town  "  to  teach  all  such  children  as  should  re- 
sort to  him  to  read  and  write ;  whose  wages  shall  be  paid  by 
the  parents  or  masters  of  such  children,  or  by  the  inhabitants 
in  general."  A  printing  press  was  established  in  Cambridge 
in  1639. 

In  Virginia,  however,  education  was  at  first  neglected.  In 
1671,  Sir  William  Berkeley,  who  was  long  a  governor  of  the 


RELIGIOUS  LIBERTY.  27 

colony,  in  a  report  to  the  Lords  Commissioners  respecting 
religious  and  other  instruction,  wrote  these  words  :  "  I  thank 
God  there  are  no  free  schools  nor  printing,  and  I  hope  we 
shall  have  none  these  hundred  years ;  for  learning  has  brought 
disobedience  and  heresy  and  sects  into  the  world,  and  printing 
has  divulged  them,  and  libels  against  the  best  government. 
God  keep  us  from  them  both."  But  Sir  William  passed 
away,  and  schools  and  printing  came.  William  and  Mary's 
College  was  founded  in  1691.  The  events  which  led  to  the 
Revolution  stimulated  the  study  of  the  law.  Edmund  Burke 
said  in  a  speech  in  Parliament :  "  In  no  other  country  perhaps 
in  the  world  is  the  law  so  general  a  study.  The  profession 
itself  is  numerous  and  powerful.  .  .  .  The  greater  number  of 
deputies  sent  to  Congress  are  lawyers.  I  have  been  told,"  he 
said,  "by  an  eminent  bookseller,  that  in  no  branch  of  his  busi- 
ness, after  tracts  of  popular  devotion,  were  so  many  books  ex- 
ported to  the  colonies,  as  those  of  the  law." 

The  love  of  liberty,  which  had  been  nurtured  and  developed 
in  the  town  meetings  in  New  England,  had  its  counterpart 
among  the  slave-holders  of  Virginia  and  the  Carolinas.  Said 
Mr.  Burke  in  the  English  Parliament :  "  They  have  a  vast 
number  of  slaves.  Where  this  is  the  case  in  any  part  of  the 
world,  those  who  are  free  are  by  far  the  most  proud  and 
jealous  of  their  freedom.  These  people  of  the  southern  colo- 
nies are  much  more  strongly,  and  with  a  higher  and  more  stub- 
born spirit,  attached  to  liberty,  than  those  to  the  northward." 

Religious  liberty  and  toleration  had  so  marked  an  influence 
upon  our  civil  liberty  that  we  may  well  pause  for  a  moment, 
and  glance  at  some  of  the  causes  of  their  growth  and  diffusion. 

The  colonies  were  the  home  of  multitudes  who  had  been  per- 
secuted for  the  sake  of  their  faith.  If  persecuting  bigotry 
threatened  the  exiled  zealot  in  one  colony,  a  sympathizing  or 
tolerant  community  either  welcomed  or  endured  his  presence 
in  another.  Christian  Europe,  during  the  century  that  pre- 
ceded the  landing  of  the  Pilgrims,  had  many  a  sad  field  of 
religious  persecution. 

The  dominant  church  had  satisfied  or  subdued  the  Christian 
mind  for  many  centuries.  When  Protestant  liberty  came  with 
the  Reformation,  the  established  order  tried  to  crush  it  out. 

/ : , 


28  CONSTITUTIONAL  HISTORY. 

Temporal  swords  clashed :  on  the  old  side,  to  purge  the  new 
heresy ;  on  the  new  side,  to  defend  its  right  to  exist  and  make 
the  field  for  existence  wider.  The  logical  result  of  the  denial 
of  the  supremacy  of  the  ancient  church  was  to  give  to  every 
man  liberty  of  religious  faith  and  worship.  The  further  re- 
sult was  that  Protestantism  disintegrated  into  numerous  and 
sometimes  hostile  sects. 

A  remarkable  series  of  events  led  to  the  Established  Church 
in  England.  It  is  not_strange  that  the  generations  which 
dared  to  rebel  against  the  spiritual  dominion  of  the  Pope, 
which  the  Christian  world  for  fourteen  centuries  had  attested, 
should  deny  or  dissent  from  the  spiritual  dominion  of  a  church 
of  which  Henry  VIII.  was  the  founder  and  head.  Nor  is  it 
strange  that  persecution  should  follow  that  dissent. 

The  government  felt  constrained  to  make  good  its  position 
and  pretensions.  Prudence  required  both  the  old  church  and 
the  new  to  sort  out  friends  from  enemies.  On  either  side 
articles  of  faith  were  of  serious  import.  The  heretic  or  dis- 
senter in  either  camp  was  an  enemy.  Recantation  was  ex- 
acted, or  punishment  inflicted.  To  the  magistrate,  this  alter- 
native was  a  proper  police  regulation ;  to  the  fanatic,  an 
obligation  due  to  true  religion.  But  the  human  mind,  once 
set  free,  could  not  be  restrained  by  temporal  power.  If  liberty 
of  conscience  was  denied  at  home,  energy  and  zeal  would  find 
an  asylum  abroad.  The  Brownists,  who  followed  John  Bobin- 
son  to  Holland,  and  afterwards  set  foot  on  Plymouth  Rock,  had 
the  same  right  to  establish  new  creeds  and  forms  of  worship 
as  had  Henry  VIII.  The  new  continent  offered  its  wilderness 
to  these  devoted  people,  and  to  all  others  who,  in  that  age  of 
spiritual  unrest,  could  not  conform  to  authority,  or  abide  its 
persecutions. 

Religious  liberty  in  the  new  world  could  not  long  thrive 
without  civil  liberty.  Each  is  inseparable  from  the  other. 
Without  religious  liberty,  civil  liberty  does  not  exist ;  and 
without  civil  liberty,  religious  liberty  has  no  sure  protection. 

In  Virginia  the  Church  of  England  was  established  by  law 
and  favored  by  the  people.  But  Bancroft  says :  "  Virginia 
was  the  first  state  in  the  world,  composed  of  separate  boroughs 
diffused  over  an   extensive  surface,  where  representation  was 


RELIGIOUS  LIBERTY.  29 

organized  on  the  principle  of  universal  suffrage."  It  is  plain 
that  universal  suffrage  and  religious  intolerance  are  incom- 
patible. The  man  who  has  the  right  to  vote  as  he  pleases 
already  has  liberty  of  faith  and  conscience. 

The  Pilgrim  fathers,  including  the  settlers  of  Massachusetts 
Bay  with  those  of  the  Plymouth  colony,  came  here,  not  to  es- 
tablish religious  liberty  in  general,  but  for  liberty  to  enjoy 
their  own  particular  religion.  They  illustrated  by  their  action 
that  though  they  had  fled  from  the  persecution  of  intolerant 
power,  they  felt  it  their  duty  when  they  attained  power  to 
visit  the  like  persecution  upon  those  who  did  not  conform  to 
their  standard  of  faith  and  worship.  Their  charter  did  not 
confer  upon  them  liberty  to  establish  their  dissenting  church 
as  the  church  of  their  new  state,  but  they  made  bold  to  assume 
and  exercise  the  liberty.  They  meant  to  enjoy  their  liberty, 
and  they  did,  even  to  the  extent  of  punishing  those  who  sought 
to  exercise  the  like  measure  of  liberty  in  a  different  faith. 

Indeed,  that  must  be  an  exquisite  liberty  which  the  zealot 
enjoys,  who,  having  fled  the  rack  and  the  fagot  in  one  conti- 
nent, can  command  them  in  another.  The  intolerance  in 
Massachusetts  was  mitigated  in  1691  by  the  charter  of  Wil- 
liam and  Mary.  It  provided  that  there  should  be  "  a  liberty 
of  conscience  allowed  in  the  worship  of  God  to  all  Christians 
except  Papists,"  as  the  Protestants  of  those  days  designated 
the  Roman  Catholics.  England  had,  with  the  accession  of  these 
sovereigns,  become  more  tolerant.  The  celebrated  Toleration 
Act  of  William  and  Mary  repealed  all  former  statutes  im- 
posing penalties  upon  Protestant  dissenters  for  nonconformity 
to  the  ritual  and  discipline  of  the  Established  Church.  Its  in- 
fluence was  felt  in  the  colonies.  Still  the  Congregational 
Church  long  continued  to  be  the  state  church  in  both  Massa- 
chusetts and  Connecticut,  and  none  but  church  members  could 
be  admitted  as  freemen.  But  the  Congregational  Church  was 
democratic  in  its  government,  and  hence  a  training-school  in 
the  ways  of  self-government.  In  Connecticut  the  Quakers, 
Ranters,  Adamites,  and  "other  notorious  heretics"  were  by 
law  excluded  from  the  colony. 

Massachusetts  persecuted  the  Quakers,  and  so  the  Quakers 
followed   Roger  Williams  —  a  graduate   of   Oxford,   and   a 


30  CONSTITUTIONAL  HISTORY. 

preacher  of  religious  liberty  far  too  advanced  for  the  age  —  to 
Rhode  Island,  not  to  establish  religious  liberty,  but  to  enjoy 
in  freedom  their  own  religion.  Under  the  lead  of  Williams, 
Rhode  Island  became  the  refuge  of  the  wanderers  who  were 
persecuted  either  for  their  faith,  or  for  the  lack  of  it.  As 
every  one  wanted  to  be  let  alone  in  matters  of  conscience, 
mutual  toleration  was  the  best  expedient.  The  Rhode  Island 
people  petitioned  the  king  for  a  charter,  and  sent  Williams  to 
procure  it.  In  their  petition  they  recite  "th^t  it  is  much 
in  their  hearts,  (if  they  be  permitted,)  to  hold  forth  a  lively 
experiment  that  a  most  flourishing  civil  state  may  stand,  and 
be  best  maintained,  and  that  among  our  English  subjects  with 
full  liberty  in  religious  concernments."  The  king  granted  the 
charter.  It  recites  that  "  no  person  within  the  said  colony 
at  any  time  hereafter  shall  be  any  wise  molested,  punished, 
disquieted,  or  called  in  question,  for  any  difference  in  opinion 
in  matters  of  religion.'*  This  covers  the  whole  ground.  What 
the  Massachusetts  people  thought  of  their  neighbors  in  Rhode 
Island  we  may  infer  from  the  words  of  Cotton  Mather,  written 
in  1665 :  "  Rhode  Island  colony,"  he  says,  "  was  a  colluvies 
of  Antinomians,  Familists,  Anabaptists,  Antisabbatarians,  Ar- 
minians,  Socinians,  Quakers,  Ranters,  and  everything  but 
Roman  Catholics  and  good  Christians  ;  bona  terra^  malagensy 
Nevertheless,  we  find  it  recorded  that  in  1688  an  inhabitant 
of  Rhode  Island  was  fined  by  the  Quarter  Sessions  for  plant- 
ing a  peach-tree  on  Sunday.  And  Neal,  their  historian,  says 
that  they  all  read  the  Scriptures,  from  the  least  to  the  great- 
est, but  they  would  not  pay  anything  for  the  benefit  of  hire- 
lings, as  they  called  the  preachers. 

In  Maryland,  the  charter  granted  to  Lord  Baltimore  provided 
that  the  Church  of  England  should  be  established.  But  Lord 
Baltimore  was  himself  a^Cmiolic,  and  so  were  hia  principal 
followers.  Lord  Baltimore  therefore  protected  thl^  Catholics 
and  could  not  oppress  the  Church  of  England  people,  for  if  he 
had,  they  would  have  complained  to  the  king.  Hence  reli- 
gious toleration  became  a  necessity.  In  1691  the  proprietary 
government  was  superseded  by  a  provincial  government. 
The'  Catholics  were  then  denied  liberty  of  worship. /.  ,^ut  in 
1714  the  proprietary  government  was  restored  and  the  Catho- 
lics resumed  their  liberty. 


RELIGIOUS  LIBERTY.  31 

In  the  Carolinas  the  Church  of  England  was  established  by 
the  charter  drawn  by  the  celebrated  John  Locke,  the  great 
expounder,  in  an  age  of  the  divine  right  of  kings,  of  the  prin- 
ciple that  governments  derive  their  just  powers  from  the  con- 
sent of  the  governed.  But  his  charter  is  subject  to  the  re- 
proach that  it  is  the  most  monarchical  of  any  inflicted  upon 
an  American  colony.  Still  the  charter  in  this  respect  was  of 
small  force.  Good  government  is  rarely  invented,  but  is  the 
result  of  natural  and  healthy  growth.  It  should  fit  the  peo- 
ple in  a  natural  way,  as  the  bark  of  a  tree  fits  its  trunk  and 
branches  in  every  stage  of  development.  You  cannot  take 
bark  from  one  pile  and  lumber  from  another  and  make  a  tree. 
Locke's  constitutions  fitted  neither  place  nor  people.  They 
would  not  work,  and  the  people  put  them  aside  and  made 
what  little  government  they  wanted  until  1720,  when  provin- 
cial governments  were  formed  for  both  Carolinas.  Among 
the  people  were  Huguenots  from  France,  German  Protestants 
from  the  Palatinate,  Moravians,  Swiss,  and  Scotch,  with  ad- 
venturers without  any  religion  from  most  of  the  other  colo- 
nies. Out  of  such  a  medley  of  people  there  had  to  be  toler- 
ation —  partly,  also,  if  a  recent  writer  says  true  —  because 
nobody  cared  a  groat  for  theology  or  religion. .  Most  of  the 
South  Carolina  settlers  had  left  their  homes  in  Europe  upon 
account  of  matters  connected  with  religion.  About  one  half 
were  Scotch  Highlanders,  Protestants  from  the  north  of  Ire- 
land, some  Germans,  many  Huguenots,  and  the  other  half 
Englishmen.  The  Church  of  England  was  established  by  law, 
but  the  great  bulk  of  the  population  were  Presbyterians,  op- 
posed to  the  Established  Church,  and  toleration  ensued  as  a 
compromise  between  the  force  of  the  law  and  the  stronger 
force  of  the  facts. 

In  1692  an  act  was  passed  giving  freedom  of  worship  to 
all  Christians  "  except  Papists."  The  Scotch-Irish  Presby- 
terians, says  Bancroft,  were  the  first  to  advise  the  colonies  to 
dissolve  connection  with  Great  Britain.  North  Carolina  was 
the  first  colony  to  give  an  explicit  vote  for  it. 

In  the  province  of  New  York,  the  Dutch  settlers  mostly 
favored  the  Reformed  Protestant  Dutch  Church.  One  of  the 
best  evidences  of  religious  toleration  is  that  the  English  con- 


32  CONSTITUTIONAL  HISTORY. 

quest  of  the  colony  in  nowise  superseded  it.  The  early  com- 
missions of  the  English  governors  provided  that  no  one 
should  preach  in  the  provinces  unless  licensed  by  the  Bishop 
of  London,  or  by  the  governor.  In  1707,  Francis  Makemie, 
a  Presbyterian  clergyman,  violated  this  regulation  and  was 
brought  before  the  governor,  to  whom  he  boldly  replied: 
"  Your  instructions  are  no  law  to  me."  He  was  brought  to 
trial  before  the  chief  justice,  who  charged  the  jury  that  the 
question  was  doubtful,  and  the  jury  acquitted  him.  The 
effort  to  make  the  Church  of  England  the  established  church 
of  the  province  resulted  in  a  failure.  An  act  of  the  colonial 
legislature  in  1695  authorized  the  vestrymen  and  church  war- 
dens of  the  English  Church  to  call  a  dissenting  minister,  if 
they  were  so  minded.  No  wonder  the  exasperated  governor 
told  the  legislature,  "  You  seem  to  take  the  whole  power  in 
your  hands  and  set  up  for  everything." 

To  William  Penn  is  to  be  credited  a  clear  and  broad  enun- 
ciation of  religious  liberty.  In  his  frame  of  government  for 
the  colony  of  Pennsylvania,  he  declared,  "  that  all  persons 
acknowledging  one  Almighty  God,  and  living  peaceably,  shall 
be  in  no  ways  molested  for  their  religious  persuasion  or  prac- 
tice in  matters  of  faith  or  worship,  or  compelled  to  frequent  or 
maintain  any  religious  worship,  place,  or  ministrj'^." 

In  New  Jersey,  liberty  of  conscience  was  first  conceded  to 
all  persons,  but  was  afterwards  denied  to  the  ''Papists."  The 
Swedes  and  Dutch  settled  Delaware,  and  do  not  appear  to 
have  had  or  caused  any  religious  troubles.  In  Georgia,  the 
"  Papists  "  were  refused  toleration ;  all  other  Christian  sects 
were  encouraged. 

Thus  the  variety  of  religious  sects,  the  liberality  of  the 
charters,  the  spirit  of  the  people,  and  their  peculiar  condi- 
tions combined  to  make  the  colonies  the  home  of  religious 
liberty,  and  thus  helped  to  bring  about  our  constitutional 
liberty.  They  who  freely  debate  respecting  the  ordinances 
of  God  do  not  lack  the  spirit  or  freedom  to  challenge  those  of 
men.  Complete  liberty  and  toleration,  however,  were  legally 
wrought  out  after  the  Declaration  of  Independence.  The 
necessity  of  union  and  the  declaration  of  equality  of  rights 
completed  the  emancipation  of  the  human  mind. 


CAUSES  LEADING  TO   THE  REVOLUTION.  33 

Mr.  Burke,  speaking  in  the  British  Parliament,  enumerated 
six  causes  of  what  he  characterized  as  "  the  fierce  spirit  of  lib- 
erty "  in  the  colonies :  English  descent ;  liberal  forms  of  gov- 
ernment ;  the  religion  of  the  provinces  of  Massachusetts  and 
Connecticut,  which  he  said  was  the  Protestantism  of  Protes- 
tantism ;  the  manners  in  the  southern  provinces,  resulting 
from  slavery  ;  education  ;  distance  from  England.  To  these 
may  be  added  :  Equality  of  condition,  direct  ownership  of 
land,  and  scarcity  of  money,  which  compelled  the  colonists  to 
investigate  the  authority  for  taxation,  and  to  provide  against 
its  abuse. 

Something  too  may  be  credited  to  the  influence  of  the  wil- 
derness. In  those  vast  solitudes  freedom  was  everywhere, 
and  tyranny  could  not  enter.  Man  might  not  think  of  lib- 
erty, but  he  could  not  help  enjoying  it.  He  was  uncon- 
sciously educated  to  regard  it  as  a  natural  condition. 

The  immediate  cause  of  the  Revolution  was  the  attempt  of 
Great  Britain  to  tax  the  colonies  according  to  the  pleasure  of 
Parliament,  irrespective  of  any  denial  of  that  right  on  their 
part.  This  attempt  by  Parliament  was  the  assertion  of  its 
right  to  interfere  with  and  take  away  any  of  the  rights  and 
privileges  secured  to  the  colonies  by  their  charters. 

Originally  the  difficulty  took  the  form  of  a  dispute  between 
Great  Britain  and  the  colonies,  not  upon  the  right,  but  upon 
the  mode,  of  obtaining  a  small  revenue  from  them.  The  right 
was  at  first  conceded,  but  the  mode  was  disputed.  England 
had  incurred  a  large  debt  in  maintaining  war  against  France, 
partly  for  the  defence  of  the  American  colonies,  and  the 
Chancellor  of  the  Exchequer  thought  the  colonies  ought  to 
contribute  something  towards  its  satisfaction.  In  1764  he 
proposed,  and  Parliament  imposed,  certain  duties  upon  va- 
rious articles  of  foreign  produce  imported  into  the  colonies, 
and  upon  a  few  articles  exported  by  the  colonies  to  countries 
other  than  Great  Britain.  It  was  also  resolved  that  it  might 
be  proper  to  charge  certain  stamp  duties  in  the  colonies.  It 
was  not  thought  expedient  to  impose  the  charge  of  stamp 
duties  immediately,  but  to  confer  with  the  agent  of  the  colo- 
nies and  ascertain  if  any  other  form  of  tax  would  suit  them 
better.     The  English  government  supposed  it  was  treating 


34  CONSTITUTIONAL  HISTORY. 

the  colonies  with  great  condescension,  and  was  greatly  aston- 
ished at  the  vehemence  with  which  the  colonies  exclaimed 
against  the  stamp  law.  This  they  did  without  proposing  any 
substitute  for  it.  The  following  year  the  stamp  tax  was  im- 
posed. It  received  the  most  vehement  resistance,  and  was 
the  occasion  of  many  alarming  riots  in  the  colonies.  Nine^ 
colonies  convened  a  general  congress  in  New  York.  The 
congress  remonstrated  against  j:he  tax,  and  made  a  declara- 
tion of  the  rights  and  duties  of  the  people  as  English  sub- 
jects. The  other  colonies  concurred.  This  was  the  "  Stamp 
Act  Congress."  The  colonists  would  not  use  the  stamps,  and 
they  compelled  the  officers  charged  with  their  sale  to  resign. 
The  English  government  was  amazed  and  alarmed,  and  caused 
an  inquiry  to  be  made  into  colonial  affairs. 

Benjamin  Franklin  was  the  resident  agent  in  London  for 
Pennsylvania,  and  he  was  examined  as  a  witness.  His  testi- 
mony reflected  the  sentiments  expressed  by  the  general  con- 
gress in  New  York.  He  represented  that  the  tem})er  of  the 
colonists,  until  the  Stamp  Act  was  passed,  was  the  best  in  the 
world  ;  they  considered  themselves  part  of  the  British  em- 
pire, and  were  ready  and  willing  to  support  it  as  far  as  their 
little  power  went ;  they  had  always  been  ready  to  tax  them- 
selves and  were  ready  now;  they  had  assemblies  of  their 
own ;  these  assemblies  were  ready  and  willing  to  impose  such 
taxes  upon  their  people  for  the  benefit  of  the  crown  as  were 
suitable  to  their  circumstances  and  abilities,  whenever  they 
were  called  upon  in  a  constitutional  manner ;  the  English 
Parliament  might  properly  impose  the  import  and  export 
duties,  for  such  duties  were  within  its  rightful  power  to  reg- 
ulate commerce.  England  guarded  the  sea,  and  these  duties 
were  a  proper  charge  for  the  expense  ;  but  the  stamp  duties 
were  internal  taxes  which  could  not  be  levied  upon  any  Eng- 
lish people  except  by  their  own  representatives,  and  the  colo- 
nies had  no  representation  in  Parliament,  but  did  have  in 
their  own  assemblies.  Franklin's  attention  was  called  to  the 
fact,  that  in  the  charter  of  Pennsylvania  it  was  provided 
that  the  king  would  levy  no  taxes  unless  with  the  consent  of 
the  Colonial  Assembly,  or  by  an  act  of  Parliament ;  to  this 
he  answered  that  Parliament  had  never  exercised  the  power, 


TAXATION   WITHOUT  REPRESENTATION.  35 

and  the  people  therefore  understood  that  it  never  would,  un- 
less it  first  admitted  their  representatives.  Colonial  repre- 
sentation in  Parliament  was  impracticable,  but  the  colonists 
would  tax  themselves  if  requested.  He  strongly  represented 
that  the  people  were  so  poor  that  they  did  not  have  specie 
money  enough  to  pay  for  the  stamps. 

We  thus  have  an  idea  of  the  colonial  mind  in  1765,  ten 
years  before  Lexington  and  Bunker  Hill.  The  cause  of  com- 
plaint does  not  appear  to  have  been  actually  great.  Greater 
cause  seems  to  have  existed  in  the  oppressive  character  of  the 
acts  restraining  trade,  manufactures,  and  navigation,  the  valid- 
ity of  which  the  colonists  long  admitted.  But  the  complaint 
illustrates  the  colonial  disposition  to  meet  threatened  danger 
before  it  became  firmly  established.  Notwithstanding  the 
riots  and  resistance  to  the  stamp  tax,  the  English  government 
was  willing  to  repeal  the  act,  with,  however,  the  declaration, 
salve  to  its  pride,  that  the  Parliament  had  the  right  to  tax 
America.  In  1766  such  an  act  was  passed.  The  repeal  and 
the  declaration  went  together.  But  when  the  bill  was  in- 
troduced, party  strife  ran  high  in  Parliament.  Mr.  Pitt, 
afterwards  Lord  Chatham,  was  then  in  the  opposition,  and 
seizing  upon  the  position  advanced  by  the  colonists,  that, 
without  representation.  Parliament  could  not  legally  impose 
taxation,  he  made  one  of  his  great  speeches  in  its  support. 
That  speech,  though  it  failed  to  convince  Parliament,  and 
perhaps  was  unsound,  convinced  the  colonists.  The  repeal  of 
the  Stamp  Act  confirmed  their  convictions  . 

The  excitement  which  the  stamp  act  caused,  and  the  uni- 
versal discussion  of  the  right  of  Parliament  to  tax  America, 
led  to  a  retraction  by  the  colonists  of  the  concession  of  the 
right  to  impose  import  and  export  duties.  In  1767  Parlia- 
ment passed  an  act  providing  for  the  imposition  of  certain 
duties  upon  tea,  glass,  and  paper,  and  one  or  two  other  arti- 
cles imported  into  the  colonies.  These  duties  were  in  part 
counterbalanced  by  a  reduction  of  some  other  duties  previ- 
ously imposed.  A  portion  of  the  money  thus  to  be  raised 
was  to  be  spent  in  America,  but  a  portion  was  to  be  paid 
into  his  Majesty's  exchequer  to  defray  the  expenses  of  de- 
fending, protecting,  and  securing  the  colonies,  —  a  provision 


36  CONSTITUTIONAL  HISTORY. 

which  the  colonists  feared  meant  coercion.  Although  these 
were  import  duties,  their  exaction  aroused  the  indignation  of 
the  colonies  and  provoked  their  resistance.  Resolutions  were 
adopted  not  to  use  the  articles,  and  the  custom-house  officers 
in  Boston  were  badly  beaten. 

The  issue  was  thus  sharply  made,  whether  Great  Britain 
did  indeed  have  the  right  to  tax  America.  While  it  is  plain 
to  see  that  if  the  right  was  conceded  by  the  colonists,  it  im- 
plied a  concession  that  was,  theoretically  at  least,  fatal  to 
their  liberties,  for,  as  was  said,  the  right  to  tax  a  penny  im- 
plied the  right  to  tax  a  pound,  yet  the  surrender  of  the  right 
was  the  surrender  of  the  controlling  supremacy  of  England. 
Mr.  Burke  said  in  Parliament:  "It  is  the  weight  of  the  pre- 
amble, not  of  the  duty,  that  the  Americans  are  unable  to 
bear."  The  colonists  were  greatly  encouraged  by  the  sup- 
port given  to  their  claims  by  advocates  in  England,  even  in 
the  ministry  itself.  But  George  the  Third  was  king,  and  he 
exercised  a  power  in  his  owif  government  to  which  the 
queen  at  the  present  day  is  a  stranger.  He  was  inflexible  in 
his  demand  that  his  rebellious  subjects  in  America  should 
obey,  if  they  did  not  respect,  the  authority  of  the  home  gov- 
ernment. It  is  not  necessary  to  follow  in  detail  the  succes- 
sive steps  which  culminated  in  open  rebellion.  All  conces- 
sions in  taxation  which  reserved  the  right  to  impose  the 
taxes  were  scouted  at.  The  king  insisted,  and  the  colonies 
resisted. 

The  colonists  stated  the  law  of  the  case  substantially  in 
this  way  :  We  are  Englishmen  ;  we  have  the  rights  of  Eng- 
lish subjects.  It  is  the  fundamental  law  of  England  that  no 
tax  can  be  laid  upon  the  people  except  by  their  consent,  to 
be  given  by  their  representatives  in  Parliament.  We  in 
America  are  not  represented  there;  therefore  our  consent 
cannot  be  given  there.  We  are  represented  here  in  our  own 
assemblies,  and  here  only  can  our  consent  be  given,  and  there- 
fore here  only  can  we  be  taxed.  Hence,  what  supplies  we 
furnish  the  king  must  be  our  free  gift ;  our  gift  through  our 
commons  to  our  king.  We  came  here  and  remained  here 
upon  the  pledges  of  liberty  secured  to  us  by  our  charters. 
These  charters  secure  to  us  the  privileges  which  every  Eng- 


FIRST  CONGRESS.  37 

lishman  holds  as  his  birthright,  extended  and  regulated  to 
conform  to  our  needs  in  a  distant  colony.  To  take  them 
away  is  the  breach  of  compact,  the  wrongful  act  of  a  tyrant. 
Moreover,  England,  they  finally  began  to  argue,  is  only  one 
and  an  equal  part  of  the  whole  kingdom,  and  therefore  has  no 
right  to  give  the  laws  to  the  other  parts. 

In  1773,  Parliament  in  imposing  a  duty  upon  tea  to  be  im- 
ported into  the  colonies  by  the  East  India  Company  explicitly 
declared  "  that  the  colonies  and  plantations  in  America  have 
been,  are,  and  of  right  ought  to  be,  subordinate  to  and  de- 
pendent upon  the  imperial  crown  and  Parliament  of  Great 
Britain ;  "  and  that  the  king,  by  and  with  the  consent  of 
Parliament,  "  had,  hath,  and  of  right  ought  to  have,  full 
power  and  authority  to  make  laws  and  statutes  ...  to  bind 
the  colonies  in  all  cases  whatsoever." 

And  now  the  colonial  freeholder,  feeling  the  independence 
that  came  to  him  with  the  ownership  of  his  freehold,  and  edu- 
cated by  long  discussion  to  believe  that  taxes  were  the  gift  of 
the  people,  not  the  right  of  the  king,  was  ready  to  dispute  this 
imperial  assertion  of  power.  He  was  less  a  freeholder  and  a 
freeman,  if  the  king  and  Parliament,  three  thousand  miles 
away,  could,  at  their  own  pleasure,  place  a  mortgage  upon  his 
farm  and  its  products  in  the  form  of  a  tax.  And  the  free- 
holder was  right. 

But  England  had  delayed  too  long  this  bold  assertion  of 
its  power  "  to  bind  the  colonies  in  all  cases  whatsoever."  By 
the  neglect  of  the  crown  the  people  had  grown  in  strength, 
and  in  the  knowledge  that  they  possessed  it.  The  war  with 
France  had  been  an  instructive  experience.  The  peace  of 
Paris  in  1762  ended  the  French  dominion  in  Canada,  and  on 
the  Ohio  River,  and  left  the  colonies  without  a  hostile  neigh- 
bor. It  is  probable  that  England  lost  her  colonies  south  of 
the  Canadian  frontier  because  she  gained  those  of  the  French 
north  of  it.  The  colonies  did  resist  the  pretensions  of  Great 
Britain,  and  the  Revolution  came  on. 

This  resistance  brought  the  colonies  together.  Franklin,  in 
1773,  suggested  that  they  hold  a  general  congress,  and  refuse 
to  grant  aid  to  England  until  their  rights  were  admitted  and 
better  defined.    The  "  Sons  of  Liberty  "  of  New  York  were  the 


38  CONSTITUTIONAL  HISTORY. 

first  to  send  an  invitation  to  all  the  colonies  to  come  together. 
Massachusetts  named  the  time  and  place.  They  came  to- 
gether, not  to  make  a  common  government,  but  to  concert 
measures  to  secure  redress  of  grievances.  It  was  on  the  5th 
day  of  September,  1774,  that  a  number  of  delegates,  chosen 
and  appointed  by  the  separate  colonies,  met  at  Carpenter's 
Hall,  in  the  city  of  Philadelphia.  A  mob  had  thrown  over- 
board in  Boston  harbor  a  cargo  of  tea,  upon  which  the  British 
Parliament  had  imposed  a  tax  or  duty.  Other  circumstances 
had  happened  which  convinced  Parliament  that  Massachusetts 
was  rebellious  and  needed  discipline.  In  March,  1774,  Par- 
liament passed  three  bills :  one  for  closing  the  harbor  of  Bos- 
ton, and  suspending  its  trade  during  the  pleasure  of  the  king ; 
the  second,  that  the  king  should  appoint  the  provincial  coun- 
cil, that  the  royal  governor  might  appoint  and  remove  judges 
and  sheriffs  at  his  pleasure,  and  that  no  town  meetings  should 
assemble  without  the  royal  governor's  license;  and  the  third 
was,  that  if  any  person  should  be  indicted  for  murder  in  aid- 
ing the  magistracy,  he  might  be  sent  to  Great  Britain  for 
trial.^  I  am  not  going  to  dwell  upon  these  or  other  acts  of 
the  English  government.  It  was  plain  that  if  these  things 
could  be  done,  more  could  be  done.  If  in  Massachusetts, 
then  in  every  other  colony.  All  the  colonies  naturally  were 
alarmed.  Hence  the  first  Congress  at  Philadelphia.  It  did 
not  adopt  any  very  decided  measures.  It  brought  the  colo- 
nies together.  It  provided  for  meeting  again.  It  familiar- 
ized the  people  with  the  fact  of  concerted  action,  and  with 
the  idea  that  in  union  there  is  strength.  It  was  the  first  of 
an  endless  succession  of  congresses,  and  thus  a  great  fact  in 
our  constitutional  history. 

There  were  fifty -five  members  ;  they  sat  with  closed  doors ; 

1  The  third  bill  was  enacted  because  it  was  supposed  that  the  royal  magis- 
tracy, to  be  created  under  the  second  bill,  might  in  their  efforts  to  suppress  sedi- 
tion find  it  expedient  to  order  that  the  offenders  be  shot  down.  If  any  should  be 
killed  those  who  fired  upon  them  might  be  indicted  for  murder  and  be  convicted, 
notwithstanding  the  fact  that  the  royal  sheriffs  mentioned  in  the  second  bill 
would  have  the  selection  of  the  persons  composing  the  juries.  Hence  the  gov- 
ernor might  send  the  indicted  persons  to  Great  Britain  where  by  means  of  "  a 
mock  trial  "  —  denounced  in  the  Declaration  of  Independence  —  they  would  be 
protected  from  the  fate  which  it  was  feared  would  befall  them  if  they  should  be 
tried  at  home. 


LEXINGTON   AND  CONCORD.  39 

tliey  talked  over  their  grievances,  but  they  did  not  talk  of  in- 
dependence or  of  arms.  They  talked  rather  of  their  rights 
under  the  crown,  and  how  under  it,  and  with  loyalty  to  it, 
they  could  secure  redress  of  grievances.  They  drew  up  an 
address  to  the  king,  and  asked  him  to  repeal  the  obnoxious 
laws  and  not  make  any  more.  They  recommended  to  the 
people  of  the  colonies  that  while  their  grievances  were  unre- 
dressed, they  should  neither  buy  from,  nor  sell  to,  the  people 
of  Great  Britain.  Great  faith  they  had  in  the  coercive  power 
of  withholding  trade.  Our  people  had  the  same  faith  later, 
—  under  every  administration  from  Washington  to  Madison. 
It  proved  to  be  a  mistake  every  time  it  was  tried. 

But  this  Congress  recommended  that  another  Congress 
should  meet  in  May,  1775.  It  adjourned,  and  saw  that  the 
king  did  not  heed  its  petition.  The  public  temper  did  not 
compose  itself.  The  British  government  in  February,  1775, 
declared  the  province  of  Massachusetts  to  be  in  rebellion.  No 
doubt  it  was.  British  troops  were  sent  to  Boston.  They 
were  not  kindly  received.  The  Massachusetts  men  began  to 
arm  themselves,  here  and  there.  It  was  on  the  morning  of 
the  19th  of  April,  1775,  that  British  troops  fired  upon  some 
minute  men  at  Lexington.  They  killed  seven,  and  wounded 
nine.  On  the  afternoon  of  the  same  day  they  met  some  vol- 
unteers and  militia  at  Concord,  and  there  followed  a  strag- 
gling fight  all  along  the  road  from  Concord  to  Boston.  The 
-British  regulars  rather  got  the  worst  of  it.  These  were  the 
battles  of  Lexington  and  Concord  ;  small  affairs  when  com- 
pared with  the  great  contests  in  which  our  arms  have  since 
been  engaged,  but  in  their  momentous  consequences  very 
great.  It  is  the  first  step  that  costs,  and  on  that  April 
day  our  fathers  dared  to  take  it,  with  all  its  eventful  conse- 
quences. 

Samuel  Adams  was  under  the  ban  of  the  British  govern- 
ment, and  was  hiding  near  Concord  from  arrest  by  its  ofl&cers. 
His  exclamation  when  he  heard  the  roar  of  musketry  was, 
"  What  a  glorious  morning  is  this."  His  prophetic  sense 
took  in  the  consequences. 

The.X9th  of  April,  1775,  is  an  imporiant  da.te  in  our  con- 
stitutional history.     The  tJonstitution  of  the  State  of  New 


40  CONSTITUTIONAL  HISTORY. 

York  declares  that  such  parts  of  the  common  law  and  of  the 
acts  of  the  legislature  of  the  colony  of  New  York  as  together 
did  form  the  law  of  the  colony  on  that  day,  which  have  not 
since  expired,  been  repealed  or  altered,  still  continue  the  law 
of  the  state,  except  as  altered.  It  sometimes  happens  in  our 
day  that  judges  listen  while  lawyers  enlighten  them  as  to 
what  part  of  the  common  and  statute  law  of  England  was  in 
force  in  the  colony  of  New  York  on  the  19th  day  of  April, 
1775. 

The  second  Continental  Congress  met  at  Philadelphia,  May 
10, 1775.  The  country  had  resolved  to  fight:  for  what?  For 
an  independent  government  ?  No ;  only  for  a  redress  of  griev- 
ances, and  to  resist  and  to  expel  the  armed  forces  that  had 
been  sent  over  to  coerce  them  into  obedience  to  the  royal 
authority.  They  hoped  that  a  sharp  and  stubborn  resistance 
would  bring  King  George  to  reason.  I  suspect  they  hoped 
more  from  the  division  of  parties  in  England  than  from  any 
expectation  of  convincing  the  king  and  his  government.  Par- 
ties were  divided  over  there,  and  it  was  not  without  some  rea- 
son that  our  fathers  hoped  that  their  resistance  here  would  so 
strengthen  the  hands  of  the  opposition  as  to  force  their  ene- 
mies out,  and  put  their  friends  in  power.  Our  fathers  were 
angry,  they  were  stubborn  and  rebellious,  and  they  drifted 
on  into  war  without  daring  to  think  just  how  the  end  would 
come  about.  They  did  not  dare  to  speak  of  independence  at 
the  start ;  the  courage  to  do  that  came  later,  with  harder 
blows,  with  hopes  deferred,  with  new  aggressions,  with  their 
bridges  burned  behind  them,  and  the  chance  for  safe  and  hon- 
orable retreat  thrown  away. 

This  Continental  Congress  was  no  legal  government.  It 
had  no  authority,  no  troops,  no  money.  It  was  a  mere  vol- 
untary association  of  delegates,  sent  from  the  several  states 
for  the  purpose  of  consultation  as  to  what  it  was  best  to  do 
and  advise.  It  was  indebted  to  the  courtesy  of  the  carpen- 
ters of  Philadelphia  for  the  hall  in  which  it  met.  Events 
pushed  it  on  to  the  assumption  of  some  authority.  By  com- 
mon consent  Congress  became  the  adviser  of  the  people,  the 
regulator  of  their  angry  patriotism.  It  resolved  that  the  war 
should  be  by  and  on  behalf  of  all  the  colonies.     Massachu- 


WAR  DECLARED.  41 

setts  procured  George  Washington  of  Virginia  to  be  appointed 
commander-in-chief  of  the  American  forces.  Thus  Massa- 
chusetts pushed  Virginia  to  the  front.  Washington  had  had 
some  experience  in  the  French  War —  not  much  in  high  com- 
mand, for  the  provincial  officer  was  thought  fitter  to  obey  a 
British  ofiicer  than  to  take  equal  rank  with  him ;  but  the 
small  opportunity  Washington  had  had  to  command  had  been 
well  used.  Since  the  death  of  Sir  William  Johnson,  who  was 
the  only  American  decorated  by  royal  favor  for  services  in 
the  French  War,  Washington  was  probably  regarded  as  the 
greatest  among  the  living  soldiers  in  America.  It  was  good 
policy  to  appoint  him.  It  made  the  war  in  Massachusetts 
a  general  war.  Washington  was  the  wealthiest  man  in  the 
land,  and  the  most  conspicuous  citizen  of  the  most  important 
colony.  It  was  a  step  towards  that  United  States  that  even 
then  was  the  dream  of  multitudes,  and  a  year  later  the  openly 
announced  object  of  the  war. 

The  sentiment  in  favor  of  independence  soon  found  expres- 
sion. Perhaps  questioningly  and  timidly  at  first,  for  the  ex- 
pression was  treason  to  Great  Britain.  It  was  not  an  idle  or 
an  easy  matter  then  to  resolve  that  the  abuse  of  power  ab- 
solved the  subject  from  his  allegiance  to  his  king.  How  much 
that  proposition  was  debated  ;  how  the  bold  and  angry  as- 
serted, and  the  weak  and  cautious  doubted  and  feared,  we  can 
form  some  idea  from  the  literature  of  that  day  that  has  come 
down  to  us.  A  pamphlet  of  Tom  Paine,  entitled  "  Common 
Sense,"  of  which  one  hundred  thousand  copies  were  distrib- 
uted, was  perhaps  most  influential. 

The  battle  of  Bunker  Hill  was  fought  June  17,  1775. 
The  provincial  loss  was  four  hundred  and  fifty  men,  killed, 
wounded,  and  missing,  and  the  British  one  thousand.  A  week 
later,  Congress  put  forth  its  declaration  of  war.  *'  Our  cause 
is  just,"  it  said,  "  our  union  is  perfect,  our  internal  resources 
are  great,  and,  if  necessary,  foreign  assistance  is  undoubtedly 
attainable.  In  defence  of  the  freedom  that  is  our  birthright, 
we  have  taken  up  arms.  We  shall  lay  them  down  when  hos- 
tilities shall  cease  on  the  part  of  our  aggressors.  We  have 
not  raised  armies  with  the  ambitious  design  of  separating  from 
Great  Britain,  and  establishing  independent  states." 


) 


42  CONSTITUTIONAL  HISTORY. 

But  the  question  of  independence  had  to  be  met.  By  the 
war  the  royal  governments  were  practically  suspended  in  the 
several  colonies.  Some  sort  of  government  must  be  had.  As 
early  as  November,  1775,  New  Hampshire  asked  the  advice 
of  Congress.  The  royal  governor  had  fled  the  colony.  Con- 
gress, after  much  hesitation,  advised  New  Hampshire  to  call  a 
''  full  and  free  representation  of  the  people,"  and  if  on  consul- 
tation it  should  seem  necessary,  then  "  to  establish  such  form 
of  government  as  in  their  judgment  will  best  produce  the 
happiness  of  the  people,  and  most  effectually  secure  peace 
and  good  order  in  the  province,  during  the  maintenance  of 
the  present  dispute  between  Great  Britain  and  the  colonies." 
New  Hampshire  followed  the  advice,  and  on  January  5,  IJJ^, 
adopted  the  first  state  constitution  formed  by  the  people. 
It  was  not  at  all  defiant.  On  the  contrary,  the  Constitution 
recited  the  predicament  which  the  "state"  —  not  the  ** col- 
ony "  —  had  fallen  into,  the  advice  of  Congress,  and  then  used 
these  words :  "  Reduced  to  the  necessity  of  providing  some 
form  of  government  to  continue  during  the  present  unhappy 
and  unnatural  contest  with  Great  Britain,  protesting  and  de- 
claring that  we  never  sought  to  throw  off  our  dependence 
upon  Great  Britain,  but  felt  ourselves  happy  under  her  pro- 
tection while  we  could  enjoy  our  constitutional  rights  and 
privileges ;  and  that  we  shall  rejoice  if  such  a  reconciliation 
between  us  and  our  parent  state  can  be  effected  as  shall  be 
approved  by  the  Continental  Congress,  in  whose  prudence 
and  wisdom  we  confide,  we  accordingly  resolve,"  etc. 

Congress  soon  after  gave  similar  advice  to  South  Carolina 
and  Virginia.  The  states  of  New  Hampshire,  South  Caro- 
lina, Virginia,  and  New  Jersey  adopted  state  constitutions 
before  the  Declaration  of  Independence  was  declared.  These 
colonies  had  provincial  governments,  always  under  governors 
appointed  by  the  king.  These  governors  were  the  first  to 
find  it  unpleasant  to  stay.  Pennsylvania  took  alarm  at  this 
dangerous  assumption  of  power  by  "the  people."  It  enjoined 
its  delegates  in  the  Continental  Congress  "to  dissent  from 
and  utterly  reject  any  proposition,  should  such  be  made,  that 
may  cause  or  lead  to  a  separation  from  our  mother  country, 
or  a  change  of  the  form  of  this  government." 


DECLARATION   OF  INDEPENDENCE.  43 

Governor  Franklin  of  New  Jersey,  the  loyalist  son  of  the 
patriotic  Benjamin,  complained,  in  his  message,  of  essays  in 
the  newspapers  favorable  to  the  "horrid  measure"  of  inde- 
pendence. He  never  became  reconciled,  was  arrested  and 
banished  from  the  state,  and  betook  himself  to  England. 

By  the  4th  of  J-uly,  1776,  Congress  had  so  far  advanced  as 
to  be  ripe  for  the  Declaration  of  Independence.  By  that 
declaration  and  its  ratification  by  the  several  colonies  the 
royal  government  passed  away.  That  fact  is  not  debatable  ; 
but  what  sort  of  national  government  took  its  place  has  been 
much  debated  since.  The  declaration  recites  that  "  these 
united  colonies  are,  and  of  right  ought  to  be,  free  and  inde- 
pendent states."  It  does  not  say  that  the  separate  colonies 
are  free  and  independent  states,  and  hence  the  argument 
against  state  sovereignty  and  state  independence,  union  of 
the  colonies  being  the  condition  of  independence,  and  "  one 
people "  the  result.  Nor  does  it  say  that  these  united  colo- 
nies are  a  free  and  independent  state,  and  hence  the  argu- 
ment that  the  colonies  were  not  consolidated  into  one  state, 
and  therefore  they  obtained  freedom  and  independence  in 
their  separate  condition ;  that  all  together  guaranteed  to 
every  one  separately  that  that  one  should  be  independent, 
and  hence  every  one  became  independent,  and  no  consolidated 
state  was  formed  out  of  all. 

This  may  seem  to  be  mere  verbiage,  and  perhaps  it  is,  but 
around  it  has  centred  much  passionate  disputation. 

The  thought  in  the  mind  of  the  framers  no  doubt  was  that 
every  colony  was  free  and  independent  of  the  king.  There 
was  no  need  to  say  independent  of  each  other ;  they  had  al- 
ways been  so,  and  the  idea  of  erecting  a  common  central  gov- 
ernment out  of  all,  and  over  all,  was  a  problem  for  the  future. 

The  first  duty  of  the  states,  made  free  and  independent,  was 
to  provide  a  proper  state  government.  New  Hampshire, 
South  Carolina,  Virginia,  and  New  Jersey,  as  we  have  seen, 
had  been  obliged  to  do  this  in  advance  of  the  Declaration. 

Connecticut  and  Rhode  Island  found  that  their  royal  char- 
ters were  as  good  constitutions  as  they  desired,  and  all  they 
needed  to  do  to  change  their  government  and  their  allegiance 
was  to  pull  down  the  royal  and  hoist  the  people's  flag.     The 

■•  0^  it 

V,  GALIF0^>  ' 


44  CONSTITUTIONAL  HISTORY. 

province  of  New  York  had  been  under  English  rule  one  hun- 
dred and  twelve  years,  and  many  of  these  years  had  been 
filled  with  contentions  between  the  royal  government  and  the 
assemblies  chosen  by  the  people.  The  people  claimed,  and 
finally  gained,  the  right  to  have  the  sole  power  of  the  appro- 
priation of  money,  and  consequently  of  taxation,  without  dic- 
tation or  amendment  on  the  part  of  the  royal  governor  and 
his  council.  If  they  did  not  like  a  royal  governor  or  judge 
they  would  not  pay  his  salary. 

Practically,  the  people  of  the  colony  of  New  York  had 
nearly  as  free  institutions  in  1776  as  they  have  to-day.  They 
were  thoroughly  alarmed  by  the  declaration  of  the  English 
Parliament  that  the  king  with  its  consent  "  had  the  right  to 
bind  the  colonies  in  all  cases  whatsoever.'* 

It  was  on  the  9th  day  of  July,  1776,  that  the  Declaration 
of  Independence  was  read  and  ratified  by  the  "  Provincial 
Congress  of  the  colony  of  New  York."  This  was  not  the 
assembly  of  the  colony,  but  a  sort  of  rebel  congress  convened 
at  the  request  of  an  executive  council  appointed  by  the  peo- 
ple. This  council  was  assembled  "to  deliberate  upon,  and 
from  time  to  time  to  direct,  such  measures  as  may  be  expe- 
dient for  our  common  safety  ;  "  it  was  in  fact  the  government 
of  the  people  in  displacement  of  the  royal  government.  On 
the  10th  of  July  this  Congress  changed  its  title  to  the  *'  Con- 
vention of  the  representatives  of  the  State  of  New  York." 
The  people  in  New  York  were  divided  into  parties.  There 
were  parties  of  peace,  of  action,  and  of  union,  but  the  par- 
ties of  action  and  union  became  one,  with  large  accessions 
from  the  party  of  peace.  This  state  convention,  it  is  inter- 
esting to  notice,  moved  about  considerably,  the  delegates 
probably  consulting  their  personal  safety.  At  one  time  we 
read  of  them  at  White  Plains,  then  at  Harlem,  at  Fishkill, 
and  finally  at  Kingston,  where  on  the  20th  day  of  April, 
1777,  the  first  Constitution  of  the  State  of  New  York  was 
adopted.  John  Jay,  afterwards  Chief  Justice  of  the  United 
States,  was  the  principal  draftsman  of  the  instrument,  and 
it  is  not  too  much  to  say  that  it  was  a  good  piece  of  work. 
We  find  a  curious  record  of  the  convention  at  Fishkill.  It 
met  in  the  Episcopal  church,  which,  says  the  record,  "  being 


DECLARATION   OF  INDEPENDENCE.  45 

foul  with  the  dung  of  doves  and  fowls,  without  any  benches, 
seats,  or  conveniences  of  any  kind,  the  convention  adjourned 
to  the  Dutch  church."  The  palatial  apartments  of  the  repre- 
sentatives of  the  people  in  the  capital  at  Albany  contrast 
strikingly  with  this  hencoop  at  Fishkill,  and  the  contrast  illus- 
trates the  growth  of  the  state. 

The  states  of  Pennsylvania,  Delaware,  Maryland,  and  North 
Carolina  adopted  their  constitutions  in  1776,  Georgia  in  1777, 
and  Massachusetts  in  1780.  These  constitutions  were  very 
much  alike.  They  were  copied  largely  from  their  colonial 
charters,  except  that  election  by  the  people  was  substituted 
for  appointment  by  the  king  or  his  governor.  The  executive, 
legislative,  and  judicial  departments  were  continued.  These 
departments  existed  in  Great  Britain,  and  in  the  several  col- 
onies, and  there  was  no  reason  why  they  should  be  less  ser- 
viceable under  popular  than  under  monarchical  governments. 
Of  course,  there  was  some  modification  which  experience  had 
suggested.  There  was  usually  a  full  bill  of  rights,  founded  in 
great  part  upon  Magna.  Gharta,  and  the  Bill  of  Rights  of  Eng- 
lish subjects  as  declared  upon  the  accession  of  William  and 
Mary  in  1688,  with  additions  suggested  by  the  Declaration  of 
Independence.  The  colonists  had  in  vain  contended  that  an 
act  of  Parliament  against  Magna  Charta  was  void,  and  they 
therefore  were  explicit  in  defining  the  rights  of  the  people 
which  their  own  governments  must  not  invade.  Valuable 
as  these  constitutions  were,  they  were  quickly  and  easily  writ- 
ten.    They  were  adaptations,  not  inventions. 

It  is  a  mistake  to  suppose  that  our  fathers  took  up  arms 
against  actual  oppression.  It  was  oppression  threatened  and 
feared,  rather  than  executed  and  felt,  which  they  rose  to  re- 
sist. They  met  it  at  the  threshold  and  strangled  it  there. 
An  examination  of  the  array  of  alleged  "  facts  submitted  to 
a  candid  world,"  in  the  imposing  rhetoric  of  the  Declaration 
of  Independence,  will  disclose  the  truth  to  be,  that  it  is  the 
threatened  assumption  of  power  by  the  king  that  forms  the 
chief  burden  of  the  formidable  indictment  against  him.  Our 
fathers  were  striving  to  retain  their  liberties,  not  to  resume 
them.  Instead  of  throwing  off  the  yoke  of  King  George,  they 
refused  to  put  it  on. 


LECTURE  III. 

Necessity  for  a  National  Government.  —  The  Articles  of 
Confederation. — Failure  of  the  System.  —  Events  leading 
to  the  Constitutional  Convention.  —  The  Convention. — 
How  the  Constitution  was  formed.  —  Debates  and  Compro- 
mises. —  Completion  of  the  Constitution. 

We  have  seen  that  it  was  comparatively  easy  for  the  colo- 
nies to  change  their  colonial  into  state  governments. 

But  there  was  to  be  wrought  out  under  the  necessity  and 
pressure  of  the  circumstances  of  their  war  with  the  mother 
country,  and  the  burdens  and  duties  which  the  war  would  en- 
tail, a  common  government  for  the  common  defence  and  the 
general  good  of  all  the  states.  This  was  the  new  problem 
which  the  American  people  were  destined  to  solve.  The  states 
themselves  must  be  protected  against  the  common  enemj'^,  and 
possibly  against  each  other.  It  is  this  elaboration  of  the  gen- 
eral government  which  resulted  in  1787  in  framing,  and  in 
1788  in  adopting,  the  Constitution  of  the  United  States,  that 
forms  the  most  interesting  and  instructive  portion  of  qiir  con- 
stitutional history.  It  took  the  twelve  years  from  1776  to 
1788  to  bring  it  all  about.  The  first  step  was  the  meeting  of 
the  Continental  Congress.  Practically,  this  accomplished  the 
union  of  the  colonies  for  the  purpose  of  carrying  on  the  war. 
The  second  step  was  the  Declaration  of  Independence.  This 
affirmed  the  union  of  the  colonies  in  their  renunciation  of  alle- 
giance to  Great  Britain.  The  third  step  was  in  the  efforts  of 
Congress  to  provide  efficient  measures,  in  which  all  the  states 
should  take  part,  to  prosecute  the  war,  and  resulted  in  the 
Articles  of  Confederation.  The  fourth  step  was  the  adoption 
of  the  Constitution.  The  Articles  of  Confederation  were  of 
themselves  the  first  written  Constitution  of  the  United  States. 
Their  importance  will  justify  our  attention  to  their  history 
and  character. 


n- 

fof 

sel 


ARTICLES   OF  CONFEDERATION.  47 

The  necessity  of  an  organized  union  of  the  colonies  into  one 
common  power,  adequate  to  command  the  resources  of  the 
whole  in  the  conflict  with  Great  Britain,  was  obvious  from  the 
first.  But  it  was  not  obvious  that  the  creation  of  one  state  out 
of  all  the  people,  and  commanding  them  all,  of  its  own  right 
and  power,  was  the  best  method.  It  was  plain  enough,  how- 
ever, to  a  few.  Thomas  Paine,  in  "  Common  Sense,"  in  Jan- 
UQ,rj,  1776,  said :  "  Let  a  continental  conference  be  held 
frame  a  continental  charter."  Many  wise  friends  of  the  cause' 
repeated,  and  from  time  to  time  renewed,  the  suggestion.  Bat 
a  continental  charter  or  constitution  for  one  continental  state 
or  nation  was  to  await  the  teachings  of  experience  and  the  pres- 
sure of  calamities.  An  association  or  confederation  of  the  states, 
in  which  each  state  should  pledge  itself  to  comply  with  the 
request  of  the  committee  or  congress  of  the  whole,  was  thought 
to  be  either  a  sufficient  or  the  only  practicable  expedient. 

In  June,  1776,  a  committee  was  appointed  by  the  Continental 
Congress  to  prepare  and  digest  the  form  of  confederacy  to  be 
enteredTinto  between  the  colonies.  This  was  before  the  Dec- 
laration of  Independence  was  adopted.  The  committee  in 
July  did  report  a  plan,  and  Congress  debated,  and  considered, 
and  waited,  until  a  year  from  the  then  next  November,  before 
it  actually  agreed  upon  the  plan,  in  the  form  of  Articles  of 
Confederation,  to  be  submitted  to  the  several  states  for  adop- 
tion. The  method  of  adoption  proposed  was  that  each  state 
should  instruct  its  delegates  in  Congress  to  subscribe  the  same 
in  behalf  of  the  state.  Congress  sent  out  a  circular  letter  to 
each  state.  That  letter  probably  tells  the  truth  about  the 
difficulties  in  the  way,  as  clearly  as  they  can  be  stated.  It 
recites  that  — 

"To  form  a  permanent  union,  accommodated  to  the  opinions  and 
wishes  of  the  delegates  of  so  many  states,  differing  in  habits,  produce, 
commerce,  and  internal  police,  was  found  to  be  a  work  which  nothing 
but  time  and  reflection,  conspiring  with  a  disposition  to  conciliate, 
could  mature  and  accomplish.  Hardly  is  it  to  be  expected  that  any 
plan,  in  the  variety  of  provisions  essential  to  our  union,  should 
exactly  correspond  with  the  maxims  and  political  views  of  every  par- 
ticular state.  Let  it  be  remarked  that  after  the  most  careful  inquiry, 
and  the  fullest  information,  this  is  proposed  as  the  best  which  could 


48  CONSTITUTIONAL   HISTORY. 

be  adapted  to  the  circumstances  of  all,  and  as  that  alone  which  af- 
fords any  tolerable  prospect  of  general  ratification.  Permit  us  then 
earnestly  to  recommend  these  articles  to  the  immediate  and  dispas- 
sionate attention  of  the  legislatures  of  the  respective  states.  .  .  .  Let 
them  be  examined  with  a  liberality  becoming  brethren  and  fellow- 
citizens,  surrounded  by  the  same  imminent  dangers,  contending  for 
the  same  illustrious  prize,  and  deeply  interested  in  being  forever 
bound  and  connected  together,  by  ties  the  most  intimate  and  indis- 
soluble. And  finally  let  them  be  adjusted  with  the  temper  and  mag- 
nanimity of  wise  and  patriotic  legislators,  who,  while  they  are  con- 
cerned for  the  prosperity  of  their  own  immediate  circle,  are  capable 
of  rising  superior  to  local  attachments,  when  they  are  incompatible 
with  the  safety,  happiness,  and  glory  of  the  general  confederacy." 

When  the  Articles  of  Confederation  were  submitted  for 
adoption,  many  objections  were  stated  by  the  different  states, 
and  many  amendments  proposed.  "  It  is  observable,"  says 
Mr.  Madison  in  the  38th  number  of  "  The  Federalist,"  "  that 
among  the  numerous  objections  and  amendments  suggested  by 
the  several  states,  not  one  is  found  which  alludes  to  the  great 
and  radical  error  which  on  actual  trial  has  discovered  itself." 
That  error  was,  the  confederacy  did  not  itself  execute  its  re- 
solves, but  requested  the  states  to  execute  them.  But  Con- 
gress did  not  deem  it  wise  to  accept  any  of  the  modifications 
suggested,  i  The  states  were  intensely  jealous  of  any  central 
power  or  hegdsEip  over  themselves,  and,  had  not  the~pressure 
^and^^^angeFoFTEe^wa^^ 

adoptedthese_^xticl£aI  All  the  states,  except  JJelaware  and 
Maryland,  ratified  them  in  1778  ;  Delaware  in  1779,  and 
Maryland  not  until  March,  1781.  One  of  the  causes  of  delay 
was  a  controversy  between  the  states  in  regard  to  the  public 
lands  which  the  crown  had  held,  and  the  states  now  cFaimed. 
The  states  which  had  the  least  land,  or  whose  boundary  claims 
were  doubtful,  felt  that  the  whole  ought  to  be  devoted  to  the 
United  States  to  provide  a  fund  to  pay  the  expense  of  the  war. 

Five  of  the  seven  years  of  the  war  had  passed  before  this 
Constitution  was  adopted.  What  authority  had  Congress  in 
the  mean  time  ?  None  whatever,  except  what  was  implied 
from  the  consent  of  the  states  or  of  the  people.  The  Congress 
was  in  fact  the  only  central  government  that  existed,  and  its 


ARTICLES  OF  CONFEDERATION.  49 

powers  to  bind  the  whole  rested  upon  the  unwritten  constitu- 
tion, which  rested  upon  the  implied  consent  of  the  people. 
S uccess  ratified  the  assumption  of  power.  The  Supreme  Court 
afterwards  held  that  this  Congress  had  sovereign  and  supreme 
powers  for  national  purposes.^  In  governments,  as  in  almost 
every  other  affair,  if  there  is  a  disposition  to  pull  all  together, 
it  does  not  make  much  difference  where  or  how  one  takes 
hold ;  where  there  is  a  will  there  is  a  way ;  a  familiar  maxim 

—  not  always  true,  but  it  is  the  fundamental  one  of  nearly 
every  revolutionary  movement,  as  history  abundantly  teaches. 

The  Articles  of  Confederation  should  be  examined  with  \ 
reference  to  the  union  which  they  established  ;  the  form  of  1 
government  created,  the  powers  conferred,  and  the  powers/ 1 
omitted.  ' 

It  would  be  well  to  remember,  for  the  sake  of  its  bearing 
upon  the  Constitution  subsequently  adopted,  that  the  parties  to 
these  "  Articles^'  were,  in  name  at  least,  not  the  people  of  the 
states,  but  the  states  themselves. 

The  instrument  was  styled  "  Articles  of  Confederation  and 
perpetual  Union  between  the  States,"  and  the  whole  body  was 
called  "  The  United  States  of  America."  Each  state  retained 
its  sovereignty,  freedom,  power,  jurisdiction,  and  right,  not  ex- 
pressly delegated  to  the  United  States  in  Congress  assembled. 
The  union  was  described  as  "  a  firm  league  of  friendship  "  be- 
tween  the  states,  for  their  common  defence,  the  security  of 
thejrjibsrties^  and  their  mutual  and  general  welfare ;  each  ~ 
statebound  itself  to  assist  every  otBier  against  all  assaults  or 
force,  offered^on  account  of  religion,  sovereignty,  or  under  any"" 
^etence.  The  free  inhabitants  of  each  state  were  to  have  all 
the  privileges  of  free  citizens  in  the  several  states ;  trade  and 
intercourse  were  to  be  free,  fugitives  from  justice  should  be 
given  up,  and  full  faith  should  be  given  in  each  state  to  the 
records,  acts,  and  judicial  proceedings  of  every  other  state. 

The  powers  of  government  were  vested  in  general  Congress 

—  this  was  of  a  single  house.  This  body  exercised  all  the 
executive,  legislative,  and  judicial  powers  granted  to  the  United 
States.  Each  state  chose  its  own  delegates  in  its  own  way^ 
and  maintained  them  at  its  own  expense.     It   might   have 

^  Penhallow  v.  Doane,  3  Dallas,  54. 


} 


50  CONSTITUTIONAL  HISTORY. 

seven,  but  could  not  have  less  than  two,  delegates.  Each  state 
had  one  vote.  No  delegate  could  hold  any  office  under  the 
United  States. 

This  government  could  declare  war  and  establish  peace ; 
send  and  receive  ambassadors ;  make  treaties  and  alliances, 
but  could  make  no  treaty  of  commerce  which  should  prevent 
a  state  from  imposing  such  duties  on  foreigners  as  its  own 
people  were  subjected  to,  or  which  should  prohibit  any  expor- 
tation or  importation.  It  could  deal  with  captures  or  prizes 
made  by  land  or  sea  ;  grant  letters  of  marque  or  reprisal  in 
times  of  peace,  and  establish  courts  to  try  piracies  and  felonies 
committed  at  sea,  and  determine  appeals  in  cases  of  capture. 

It  could  settle  disputes  between  states,  controversies  con- 
cerning land  titles,  where  two  states  had  granted  the  same 
land. 

It  could  coin  money  and  regulate  the  value  of  coin,  but  it 
is  interesting  to  note  that  it  never  coined  anything  but  cop- 
per cents.  It  could  establish  weights  and  measures,  regulate 
Indian  affairs,  establish  post-offices,  appoint  officers  other 
than  regimental  in  the  army,  and  govern  and  regulate  both 
army  and  navy  ;  it  could  ascertain  and  appropriate  the  sums 
necessary  for  the  public  service,  build  and  equip  a  navy,  bor- 
row money,  and  emit  bills  on  the  credit  of  the  United  States, 
make  requisitions  upon  each  state  for  its  quota  of  troops  ;  but 
each  state  was  to  enlist  its  own  quota  of  troops,  equip,  arm, 
and  clothe  them,  at  the  expense  of  the  United  States.  It 
^SC  took  the  votes  of  nine  states  to  do  most  of  these  things. 

All  charges  of  war  or  for  the  general  welfare  were  to  be 
paid  out  of  the  United  States  treasury,  but  the  United  States 
could  not  raise  a  dollar  by  tax,  impost,  or  duty.  It  could 
only  ask  the  states  to  raise  this  money.  The  commerce  of 
the  country  was  left  to  each  state,  and  each  state  could  levy 
what  duty  it  chose  on  foreign  imports.  There  was  no  power 
in  the  United  States  to  enforce  its  requisitions.  Congress 
could  make  a  treaty,  but  could  not  compel  a  state  to  observe 
it.  It  could  issue  bills  of  credit,  but  could  not  command  the 
money  to  pay  them. 

In  all  governments  it  will  be  found  that  the  power  over 
the  purse  is  the  greatest  of  all  powers.  Given  that,  and  al- 
most every  other  efficient  power  conferred  will  follow. 


DEFECTS   OF   THE   CONFEDERACY.  51 

The  confederation,  lacking  this  power,  lacked  the  essential^ 
re5[aiskejiL_e£BiiiniLC^tr — The  Congress  under  this  government  , 
had  no  power  to  act  upon  the  people.  It  could  only  request  / '  ] 
the  states  to  act.  This  would  have  been  very  well,  if  all  the  * 
states  had  been  always  willing  and  prompt  to  act  as  re- 
quested. But  they  were  not.  Sometimes  one  state  would 
wait  for  another,  and  sometimes  a  state  would  dispute  the 
justice  or  equality  of  the  requisition  made  upon  it,  and  would 
not  obey  it  at  all.  Of  course  in  the  time  of  war  the  general 
government  always  wanted  money,  and  wanted  more  than  it 
was  easy  for  the  states  to  pay.  This  scheme  of  government 
was  based  upon  the  proposition  that  Congress  should  request, 
and  then  the  states  would  perform.  Under  our  present  Con- 
stitution the  United  States,  instead  of  asking  a  state  to  act,  acts 
directly  upon  the  people  itself  through  its  own  laws  and  offi- 
cers. If  it  wants  to  raise  money,  it  can  impose  the  tax,  and 
send  its  own  collectors  to  gather  it  in.  It  imposes  duties 
upon  imported  goods,  or  upon  whiskey  and  tobacco,  and  col- 
lects them  itself.  The  confederation  could  not  do  this.  If 
the  United  States  now  wants  troops,  it  raises  them.  The 
confederation  could  not  do  this.  Congress  was  the  only  gov- 
erning bod3\  Now  we  have  the  executive,  judicial,  and  legis- 
lative departments.  The  pressure  of  the  war,  however,  and 
the  common  feeling  among  the  people  that  Congress  must  be 
sustained,  helped  this  government  through  the  war.  It  prob- 
ably could  have  gone  on  till  its  close  without  any  declared 
form  of  central  government.  The  states  and  the  people  were 
willing  to  take  the  advice  of  Congress  and  obey  it,  perhaps 
more  readily  before  the  Articles  of  Confederation  than  after. 

But  when  the  war  was  over,  and  its  great  burden  of  debt 
pressed  upon  the  states,  the  confederated  government  practi- 
cally broke  down.  It  was  pretty  nearly  a  failure  from  the 
start,  so  far  as  vigor  and  efliciencywere  concerned. 

Still  the  Articles  of  Confederation  had  many  good  fea-, 
tures,  some  of  which  are  preserved  in  our  present  Constitu- 
tion. 

The  Articles  were  the  interniediate  step  connecting'^^the 
Declaration  of  Independence  with  the  Constitution.  We  are 
apt  to  disparage  them  beca^ise  of  their  many  imperfections. 


52   ^  CONSTITUTIONAL  HISTORY. 

This  is  a  piece  of  historical  injustice.  Because  it  took  two 
steps  instead  of  one  to  reach  success,  the  first  step  should  not 
be  disparaged.  The  Articles  of  Confederation  certainly  have 
the  merit  of  being  the  first  elaboration  of  the  details  by 
which  the  functions  of  the  separate  powers  of  the  several 
states  were  consolidated  into  one  national  power. 

Conceive  the  difiiculty  of  doing  this.  I  have  spoken  of 
the  facilities  which  existed  to  promote  the  easy  formation  of 
the  state  constitutions  ;  but  to  take  from  each  state  just  that 
measure  of  its  power  which  it  might  safely  yield,  and  add  to 
it  the  like  measure  from  every  other  state,  and  therefrom 
construct  the  system  of  central  power,  which  should  always 
be  helpful  to  all  the  states,  and  never  injurious  to  any,  and 
which  should  act  for  all  when  such  action  is  needful,  and  tres- 
pass upon  none,  and  which,  withal,  should  be  strong,  dignified, 
and  able,  as  it  presents  its  unity  to  the  world,  and  be  respect- 
ing, respected,  and  just  with  regard  to  every  state  at  home, 
is  a  problem  more  easily  proposed  than  solved.  It  is  easy 
enough  to  state  broad,  general  principles  of  justice  and  lib- 
erty, and  formulate  them  into  glittering  sentences.  But  to 
elaborate  the  details  by  which  such  generalities  shall  be 
made  to  do  their  perfect  work  is  an  intellectual  and  con- 
structive labor,  bearing  about  the  same  relation  to  the  former 
as  the  invention  of  a  steam-engine  bears  to  the  description 
of  it. 

It  is  easy  enough  to  declare  that  every  man  is  the  equal 
in  right  of  every  other  man;  that  governments  are  for  the 
benefit  of  the  governed ;  that  the  consent  of  the  people  is 
the  foundation  of  authority.  Such  declarations  had  become 
threadbare  before  our  Declaration  of  Independence  was  writ- 
ten. Liberty  has  been  the  aspiration  of  the  human  race  al- 
ways. But  authority  has  crushed  it  out.  All  through  the 
ages  the  hand  of  the  governor  has  been  heavy  upon  the  gov- 
erned. 

The  people  of  modern  times  are  working  out  this  system  of 
representation  of  the  people.  They  hope  to  make  it  the  reg- 
ulator of  authority  and  the  preserver  of  liberty.  The  Ameri- 
can people  have  carried  it  further  than  any  other.  By  it  they 
seek  to  establish  and  maintain  government  for  the  benefit  of 


WEAKNESS   OF   THE   CONFEDERACY.  53 

the  governed.     Now  by  the  Articles  of  Confederation  a  long/ 
step  was  taken  in  the  direction  of  success.     The  end  sought 
was  known  to  be  good  ;  the  methods  adopted  were  found  to 
be  bad ;  but  the  tests  of  experience  were  fertile  in  suggestions 
of  remedies. 

The  Articles  of  Confederation  brought  the  states  into  close 
relations^  opened_up  trade  and  intercourse  with  each  othera. 
^"andnporbade  the  passage  of  hostile  trade  laws.  The  citizen  of 
one  state  was  not  an  alien  and  stranger  when  he  went  into 
a  neighboring  state.  The  general  Congress  could  negotiate 
p^ace  with  Great  Britain,  free  from  the  vexations  which  must 
have  existed,  if  every  state  had  been  obliged  to  do  it  sepa- 
rately. Consider  the  difficulty,  if  Great  Britain  had  made 
peace  with  Massachusetts  and  Pennsylvania,  and  not  with 
New  York.  The  war  that  had  been  waged  against  the  com- 
mon enemy  might  have  been  changed  to  a  war  among  the 
states,  with  Great  Britain  as  the  ally  of  some  and  the  enemy 
of  others. 

The  treaty  of  peace  was  at  last  signed  on  the  ^d  day  of 
Septenaber,  1783,  and  the  independence  of  the  United  States  '^ 
was  established.  The  new  government  had  now  before  it 
the  perils  of  a  peace  establishment.  The  United  States  gov- 
ernment had  contracted  a  debt„of  about  $42,000,000^  which  ' 
it  was  in  honor  bound  to  pay.  The  several  states  had  con- 
tracted state  debts  amounting  in  the  aggregate  to  about 
$26,000,000.  The  country  came  out  of  the  war  very  poor, 
so  poor,  indeed,  that  the  revolutionary  soldier  was  discharged 
practically  unpaid.  He  had  nominal  pay  for  only  three 
months,  and  this  was  in  scrip  worth  two  and  sixpence  for 
twenty  shillings. 

With  the  accession  of  peace  the  weakness  of  the  confed- 
eracy was  painfully  exhibited.  The  first  duty  of  Congress 
was  to  provide  some  pay  for  its  discharged  soldiers.  The 
states  would  not  all  respond  in  full.  It  was  necessary  to  pro- 
vide for  the  payment  of  the  public  debt,  or  to  apportion  it 
among  the  states,  to  make  such  uniform  regulations  of  com- 
merce as  would  be  just  to  all  the  states,  and  to  discriminate 
among  foreign  states  by  extending  or  denying  to  them  the 
privileges  they  extended  or  denied  to  us.     It  was  desirable  to 


54  CONSTITUTIONAL  HISTORY. 

make  provision  for  selling  the  public  lands,  and  colonizing 
them;  also  to  provide  a  uniform  currency  throughout  all  the 
states,  and  hence  to  prohibit  any  state  from  issuing  paper 
money.  It  was  important  that  contracts  should  be  enforced, 
and  hence  to  prohibit  any  state  from  passing  laws  to  impair 
them.  Above  all,  it  was  important  to  keep  the  faith  pledged 
in  the  treaties  with  foreign  nations.  Congress  could  accom- 
plish nothing  except  by  the  consent  of  the  states.  During 
the  war,  the  states  had  conspicuously  failed  to  respond  to  the 
requisitions  of  Congress.  With  the  peace,  matters  became 
much  worse. 

In  1780,  delegates  from  four  New  England  states  and  from 
New  York  assembled  at  Hartford,  and  recommended  to  all 
the  states  and  to  Congress  to  provide,  by  taxes  or  duties,  an 
inalienable  revenue  to  discharge  the  public  debt,  and  to  em- 
power Congress  to  apportion  taxes  on  the  states  according  to 
the  number  of  inhabitants.  But  the  plan  failed.  An  at- 
V  tempt  was  made,  in  1782,  to  amend  the  Articles  of  Confedera- 
tion so  as  to  give  the  power  to  Congress  to  levy  and  collect 
duties  upon  imported  goods.  Had  it  been  adopted,  it  is 
probable  the  confederacy  would  have  been  so  strengthened 
that  a  new  constitution  would  have  been  long  delayed,  if  not 
altogether  abandoned.  A  judicious  scale  of  import  duties, 
and  a  proper  provision  for  the  sale  of  the  public  lands,  prob- 
ably would  have  kept  the  confederacy  on  its  feet,  if  no  do- 
mestic dissensions  had  intervened.  But  the  amendment 
needed  the  assent  of  every  state,  and  Rhode  Island  refused. 
Newport,  the  chief  commercial  city  of  that  state^  was  then  a 
port  of  the  first  importance.  Rhode  Island  thus  replied  to 
the  request  of  Congress  :  — 

"  First,  the  proposed  duty  would  be  unequal  in  its  opera- 
tion ;  bearing  hardest  upon  the  most  commercial  states,  and 
so  would  press  peculiarly  hard  upon  that  state  which  derives 
its  chief  support  from  commerce. 

"  Second,  the  recommendation  proposes  to  introduce  into 
that,  and  the  other  states,  officers  unknown  and  unaccountable 
to  them,  and  so  is  against  the  constitution  of  the  state. 

"  Third,  that  by  granting  to  Congress  a  power  to  collect 
moneys  from  the  commerce  of  these  states,  indefinitely  as  to 


WEAKNESS   OF   THE   CONFEDERACY.  55 

time  and  quantity,  and  for  the  expenditure  of  which  they 
would  not  be  accountable  to  the  states,  they  would  become 
independent  of  their  constituents,  and  so  the  proposed  impost 
is  repugnant  to  the  liberty  of  the  United  States." 

Rhode  Island  had  the  power  by  force  of  her  position  to  sell 
her  taxed  goods  to  the  people  of  other  states,  or  compel  them 
to  pay  duties  to  her  if  they  imported  goods  through  her  port. 
Her  objection  to  a  central  power  appointing  revenue  officers, 
to  eat  out  the  substance  of  the  people,  was  a  favorite  objection 
in  other  states.  The  same  objection  that  they  had  to  the  taxes 
imposed  by  King  George,  they  had  to  the  imposition  of  them 
by  any  other  power  than  their  own.  It  was  further  objected 
that  to  lodge  both  purse  and  sword  in  Congress  would  be  a 
fatal  mistake. 

While  Congress  had  some  hope  of  inducing  Rhode  Island 
to  abandon  her  objections,  Virginia  withdrew  her  assent  to 
the  proposed  amendment  to  the  Articles  of  Confederation. 
As  early  as  1779,  Virginia  had  protested  that  "  she  was 
greatly  alarmed  at  the  assumption  of  power  lately  exercised 
by  Congress."  In  April,  1783,  Congress  adopted  a  resolution 
recommending  to  the  states  to  give  Congress  the  power  to 
levy  duties  upon  all  imported  goods  for  twenty-five  years,  for 
the  sole  purpose  of  paying  the  public  debt,  to  be  collected  by 
officers  chosen  by  the  states  but  removable  by  Congress.  The 
proposed  measure  failed  for  want  of  the  unanimous  consent 
of  the  states.  From  1782  to  1786,  requisitions  of  Congress, 
aggregating  more  than  six  millions  of  dollars,  yielded  about 
one  million. 

The  difficulties  which  Congress  experienced  in  procuring 
the  states  to  comply  with  its  requests  so  discouraged  it  that 
it  finally  became  difficult  to  obtain  the  necessary  attendance 
of  its  members.  The  agent  of  France,  having  repaired  to 
Trenton  in  1784,  in  expectation  of  the  assembling  of  Con- 
gress, found  no  quorum  there,  and  after  waiting  some  days 
reported,  "  There  is  in  America  no  general  government, 
neither  Congress,  nor  president,  nor  head  of  any  one  admin- 
istrative department." 

There  is  no  doubt  that  the  condition  of  the  states  from  the 
close  of  the  war  in  1783  until  after  the  adoption  of  the  Con- 

8^- 


56  CONSTITUTIONAL  HISTORY. 

stitution  was  much  worse  than  it  had  been  at  any  time  in  the 
colonial  period.  The  policy  of  Great  Britain  was,  by  hostile 
navigation  and  commercial  regulations,  to  teach  our  people 
the  difference  between  their  condition  while  dependent  upon 
her,  and  their  condition  when  exposed  to  her  resentment. 
With  the  return  of  peace  the  American  merchants,  tempted 
by  the  low  price  of  foreign  goods,  ran  in  debt  for  more  goods 
in  one  year  than  the  exports  of  the  country  could  pay  for  in 
three,  even  if  there  had  been  no  unfriendly  discrimination 
against  our  exports  in  British  ports.  But  there  was.  The 
whale  fisheries  of  Massachusetts  had  formerly  brought  in 
$800,000  in  specie  every  year  from  foreign  ports.  Now 
whale  oil  was  excluded  from  British  ports  by  a  tax  of  $90 
per  ton.  Trade  with  the  British  West  Indies  was  restricted  ; 
no  ships,  no  rice,  tobacco,  pitch,  or  turpentine  could  be  sent 
there,  as  before  the  war.  The  cheapness  of  foreign  goods 
discouraged  American  manufacturers.  Pennsylvania,  in  1785, 
passed  a  bill  to  protect  the  manufacturers  of  that  state,  by 
imposing  duties  upon  more  than  seventy  different  imported 
articles,  and  by  imposing  a  tonnage  duty  upon  ships  of  foreign 
nations  having  no  treaty  with  Congress.  But  of  what  use 
was  it  for  Pennsylvania  to  try  to  protect  herself,  unless  all  the 
other  states  would  do  the  same  ?  It  was  plain  to  that  state, 
as  to  some  others,  that  there  could  be  no  real  relief  until  Con- 
gress should  have  power  to  regulate  commerce.  The  legisla- 
ture of  that  state  so  represented  to  Congress  in  1785. 

In  May,  1785,  the  town  of  Boston  caused  the  following 
entry  to  be  made  upon  its  record :  "  Peace  has  not  brought 
back  prosperity  ;  foreigners  monopolize  our  commerce ;  the 
American  carrying  trade  and  the  American  finances  are 
threatened  with  annihilation ;  the  government  should  en- 
courage agriculture,  protect  manufactures,  and  establish  a 
public  revenue ;  the  confederacy  is  inadequate  to  its  pur- 
poses ;  Congress  should  be  invested  with  power  competent  to 
the  wants  of  the  country."  The  legislature  of  that  state 
passed  a  resolution  to  the  same  effect.  Massachusetts,  New 
Hampshire,  and  Rhode  Island  severally  passed  acts  of  retalia- 
tion upon  Great  Britain,  forbidding  exports  from  their  har- 
bors in  British  ships,  and  taxing  the  tonnage  of  incoming 


GENERAL  DISTRESS.  57 

foreign  ships.  These  acts  were  declared  to  be  temporary- 
expedients,  "  until  a  well  guarded  power  to  regulate  trade 
should  be  intrusted  to  Congress."  To  the  cries  of  distress 
from  the  states,  with  regard  to  their  foreign  trade,  Congress 
gave  some  attention.  But  the  Congress  of  peace  became  even 
more  feeble  than  the  painfully  feeble  Congress  of  war.  It 
was  divided  in  its  views  upon  the  wisdom  of  intrusting  to  the 
central  government  absolute  and  unlimited  power  over  the 
regulation  of  commerce.  The  five  southern  "  staple  states," 
as  they  were  called,  had  no  ships  or  seamen,  and  why  should 
they  give  the  monopoly  of  the  carrying  trade  to  the  eastern 
and  northern  states  ?  * 

"  The  spirit  of  commerce,"  said  R.  H.  Lee  of  Virginia,  «'  is 
the  spirit  of  avarice."  Even  the  delegates  from  Massachu- 
setts receded  from  the  position  of  their  state,  and  were  will- 
ing to  give  Congress  only  temporary  control ;  the  cry  went 
abroad  that  to  give  Congress  more  power  was  to  create  an 
aristocracy  to  dominate  over  the  states.  Congress  sent  John 
Adams  and  John  Jay  to  England,  to  see  if  a  better  com- 
^lercial  plan  could  not  be  agreed  upon.  The  answer  of  Eng- 
land in  substance  was :  "  You  have  as  one  people  neither 
power,  coherence,  nor  integrity  enough  to  justify  your  preten- 
sion to  treat  with  us.  If  we  want  to  make  any  regulations 
we  will  make  them  with  the  states  separately."  France  was 
more  friendly  in  her  dispositions,  but  politely  intimated  that 
in  dealing  with  Congress  she  would  bind  herself,  but  did  not 
feel  sure  that  she  would  bind  the  states. 

Then,  there  was  the  added  distress  caused  by  paper  money. 
Every  state  issued  it.  Its  purchasing  capacity  varied  from 
day  to  day.  Nothing  could  be  worse  in  its  effect.  Virginia 
was  the  first  state  honorably  to  extricate  itself  from  this  gross 
dishonesty.  But  of  what  use  for  one  state  to  try  to  provide 
honest  money,  if  the  other  states  still  clung  to  the  dishonest  ? 
'  But  the  growing  distress  led  to  the  conclusion  that  the  only 
escape  from  the  calamity  was  to  vest  in  the  general  govern- 
ment power  over  the  currency,  and  to  forbid  every  state  to 
emit  bills  of  credit,  as  their  bad  money  was  called,  and  forbid 
them  to  make  anything  but  gold  and  silver  a  legal  tender  for 
the  payment  of  debts. 


58  CONSTITUTIONAL   HISTORY. 

Several  of  the  states  passed  laws  tending  to  impair  the 
legal  remedies  necessary  to  make  people  pay  their  debts.     As 
Grayson  of  Virginia  put  it,  the  Congress  ought  to  have  the 
power  to  prevent  the  people  of  the  states  from  cheating  each 
other,  or  as  it  was  finally  expressed  in  the  Constitution,  from 
*'  impairing  the  obligation  of  contracts." 
I     There  were  four  causes  which  more  powerfully  than  any 
[  others  disclosed  the  utter  weakness  of  the  confederacy,  which, 
1  after  several  years  of  distress,  finally  led  to  the  formation  of 
a  new  and  stronger  Constitution.     First,  the  want  of  power 
J  to  regulate  commerce ;  second,  the  want  of   power  to  raise 
/^  A   money  to  pay  the  national  debts  and  to  support  the  national 
'       government  both  at  home  and  abroad  ;  third,  the  want  of  / 
power  to  provide  a  uniform  and  good  currency ;  fourth,  the  ;  ^  ^ 
want  of  power  to  forbid  a  state  to  pass  laws  impairing  the 
Ngbligation  of  contracts. 

In  addition  to  these  wants  there  was  a  difficulty  about  the 
western  lands.  It  was  generally  agreed  that  these  ought  to 
be  sold  for  the  benefit  of  the  states,  since  all  had  united  in  the 
war  which  wrested  them  from  the  British  power.  Virginia, 
in  1784,  helped  pave  the  way  to  a  more  perfect  union  by 
ceding  to  the  United  States  her  territories  northwest  of  the 
Ohio.     New  York  had  ceded  her  claims  in  1781. 

The  vast  extent  of  the  country  was  an  obstacle.     What 
could  the  citizens  of  New  Hampshire  and  Georgia  know  of 
each  other?     What  roads   there  were,  were   bad,   and   the 
wilderness  spread  out  from  the  rivers  and  sea-coast  in  vast 
and   trackless   expanses.      The    delegates   from   the   distant 
states  who  came  to  the  Congress  at  Philadelphia  took  weeks 
to  perform  the  journey.     Charles  C.  Pinckney  of  South  Caro- 
lina felt  moved  to  say  in  the  Constitutional  Convention,  that 
he  himself  had  prejudices  against  the  people  of  the  eastern 
states  before  he  came  there,  but  would  acknowledge  that  he 
had  found  them  as  liberal  and  candid  as  any  men  whatever. 
It   seemed  in  1785,  and  the  beginning  of  1786,  that  the 
I       public  apath}^  the  dissensions  in  Congress,  the  selfishness  of 
\      the  states,  were  obstacles   too  formidable   to   be  overcome. 
'A      Washington,   who  had  been   the   leading  advocate   of   such 
]      amendments  to  the  Articles  of  Confederation  as  should  give 


ACTION   OF  VIRGINIA.  59 

the  confederacy  the  real  power  of  a  nation  in  its  commercial, 
financial,  and  foreign  affairs,  began  to  be  discouraged.  New 
York,  as  early  as  1782,  had  resolved  "  to  propose  to  Congress 
to  recommend,  and  to  each  state  to  adopt,  the  measure  of 
assembling  a  general  convention  of  the  states,  specially  au- 
thorized to  revise  and  amend  the  confederation."  But  in 
1785,  the  change  in  politics  reversed  the  attitude  of  the  state. 
She  did  not  now  favor  any  diminution  of  her  state  impor- 
tance, or  of  her  growing  revenue  from  import  duties. 

Since  the  peace.  Congress  had  been  constantly  begging  the 
states  to  permit  the  confederacy  to  establish  and  collect  du- 
ties upon  imports.  All  the  states,  except  New  York,  had 
confessed  the  propriety  and  wisdom  of  the  request.  New 
York  insisted  upon  reserving  these  revenues  to  herself,  but 
consented  to  pay  her  quota  of  the  confederate  charge.  The 
attitude  of  New  York  was  now  fatal  to  the  success  of  the 
national  scheme.  New  York  thus  in  effect  taxed  New  Jer- 
sey, and  New  Jersey  finally  became  so  exasperated  that  she 
voted  to  pay  no  part  of  the  last  requisition  of  Congress  until 
all  the  states  should  have  accepted  the  measure  of  the  federal 
impost  for  the  benefit  of  the  general  treasury.  This  was 
secession,  and  seemed  to  end  all.  But  meanwhile  action  had 
been  taken  by  Virginia  which  caused  New  Jersey  to  recall 
her  vote  and  await  the  march  of  events. 

Virginia  opened  the  way  out  of  the  peril.  It  was  done 
through  the  adroitness  of  James  Madison.  Virginia  and 
Maryland  had  been  negotiating  together  respecting  their 
\  joint  jurisdiction  over  navigation  in  the  Chesapeake  Bay  and^ 
\  the  Potomac  River.  "'^Commissioners  had  agreed  upon  a  plan 
which  was  laid  before  the  legislature  of^eaeh  state.  In  De- 
cember, 1785,  Maryland  signified'to  Virginia  her  acceptance 
of  the  plan,  and^at  tke  same  time  proposed  that  Delaware 
and  Pennsylvania  be  invited  to  cooperate  in  a  plan  for  a 
ca«ivl  between  the  Chesapeake  and  Delaware  rivers.  Mary- 
land also  proposed  that  all  the  states  should  be  invited  to 
meet  and  regulate  the  restrictions  upon  commerce.  Madi- 
son, who  was  a  member  of  the  Virginia  legislature,  saw  his 
opportunity.  He  drew  a  resolution  for  the  appointment  of 
commissioners,  to  meet  such  commissioners  as  should  be  ap- 


60  CONSTITUTIONAL  HISTORY. 

pointed  by  the  other  states,  "  to  take  into  consideration  the 
trade  of  the  United  States,  to  examine  the  relative  situation 
and  trade  of  the  said  states  ;  to  consider  how  far  an  uniform 
system  in  their  commercial  regulations  may  be  necessary  to 
their  common  interests  and  their  permanent  harmony ;  and 
to  report  such  an  act  to  the  several  states  relative  to  this 
great  object  as,  when  unanimously  ratified  by  them,  will  en- 
able the  United  States  in  Congress  assembled  effectually  to 
provide  for  the  same."  This  resolution  he  procured  a  Mr, 
Tyler,  who  was  not  suspected  of  wishing  to  give  to  the  con- 
federacy overmuch  power,  to  introduce.  It  was  permitted  to 
sleep  until  the  last  day  of  the  session,  when,  to  use  a  modern 
word,  it  was  railroaded  through.  Madison  was  placed  at  the 
head  of  the  commission.  This  resolution  was  sent  to  the 
other  states  and  four  of  them  responded. 

On  the  11th  of  September,  1786,  the  commissioners  of  New 
York,  New  Jersey,  Pennsylvania,  Delaware,  and  Virginia  met 
at  Annapolis. 

A  minority  of  states  could  not  wisely  do  more  than  rec- 
ommend action.  The  commissioners  therefore  prepared  a 
report  to  their  respective  states,  and  sent  a  copy  of  it  to  the 
other  states,  recommending  a  meeting  of  commissioners 
from  all  the  states  to  be  held  at  Philadelphia  on  the  second 
Monday  in  May,  1787,  "  to  take  into  consideration  the  United 
States,  to  devise  such  further  provisions  as  shall  appear  to 
them  necessary  to  render  the  Constitution  of  the  Federal 
Government  adequate  to  the  exigencies  of  the  Union." 

Congress,  which,  to  use  the  words  quoted  by  one  of  its 
members,  had  long  halted  over  the  question,  "  whether  it  is 
better  to  bear  the  ills  we  have,  than  fly  to  those  we  know  not 
of,"  did  not  take  it  kindly  that  the  subject  was  to  be  referred 
to  a  convention,  and  at  first  refused  to  indorse  the  recommen- 
dation, but  after  delegates  from  several  states  had  been  ap- 
pointed, did  so  with  this  qualification  :  "  for  the  sole  purpose 
of  revising  the  Articles  of  Confederation  "  and  reporting  to 
Congress.  Thus  it  confessed  its  jealousy  of  its  power,  and 
distrust  of  the  wisdom  of  others.  But  thus  indorsed,  legal 
forms  were  observed,  and  all  the  states  except  Rhode  Island 
appointed  delegates. 


SHAYS'  KEBELLION.  61 

Virginia  was  the  first  to  act,  and  the  name  of  Washington 
stood  at  the  head  of  her  list  of  delegates.  He  hesitated 
longer  tlian  was  his  habit  before  deciding  to  accept.     Keenly___ 

^g_Jie  felt  thp  npfionnity  of  nnnh  nntion^  he  dQnbtedjwlTether 
the  people  were  ready  to  consent  to  that  delegation  of  power 

To  ti3e  central  government  necessary  to  make  it  efficient  and 
respected.  He  naturally  disliked  to  impair  his  great  fame  by 
linking  his  name  to  a  failure.  He  finally  yielded  to  the 
wishes  of  others.  His  acceptance  secured  respect  for  the  pro- 
posed convention. 

Meanwhile  a  rebellion  broke  out  in  the  western  part  of 
Massachusetts,  known  in  history  as  "  Shays'  rebellion."  The 
rebels  were  people  who  owed  money  and  could  not  pay  it,  or 
did  not  want  to.  The  laws  of  the  state  authorized  imprison- 
ment for  debt.  These  dphtnrsmnp.pJY^rl  that  the  laws,  law-  , 
yers,  courts,  and  judges  were  public  enemies.  They  deter- 
mined to""stapby  force  the  holding  of  any  more  courts.    They 

^  gathered  in  great  numbers,  bearing  banners  upon  which  were 
inscribed,  in  the  language  of  the  Declaration  of  Independen_ce.___ 
the  rights  of  the  people,  arid  the_SQurcfiIiiiJth_e_authority  of 
government.  They  did  not  cause  much  destruction.  Indeed, 
they  fled  before,  and  finally  surrendered  to,  the  militia  of  the 
state,  and  order  was  restored.  But  they  caused  great  con- 
sternation, not  only  in  Massachusetts,  but  in  other  states. 
The  foundations  of  governmejit^eem^djmperilled  when  those, 
who  owed  it  obedience  and  enjoyed  its  protection  rose,  not  Jo 
substitute  a  better,  but  to  efface  all  government.  Itjwas^fejt 
|that  there  ought  to"  be  aTcentral  power,  able  and  ready  to  put 
down  such  a  rebellion,  in  whatever  state  it  might  arise.  It  is 
difficult  to  appreciate  at  this  day  the  extraordinary  impulse 
that  this  Massachusetts  mob  gave  to  the  movement  for  a  bet- 
ter general  government. 

The  powers  conferred  by  the  several  states  were  not  uni- 
form. Virginia,  Pennsylvania,  and  New  Jersey  appointed 
their  delegates  "  for  the  purpose  of  revising  the  Federal  Con- 
stitution ; "  North  Carolina,  New  Hampshire,  Delaware,  and 
Georgia  "  to  decide  upon  the  most  effectual  means  to  remove 
the  defects  of  the  Federal  Union  ;  "  New  York,  Massachusetts, 
and  Connecticut  "  for  the  sole  and  express  purpose  of  revising 

•    /^ 

I  UN. 


62  CONSTITUTIONAL  HISTORY. 

the  Articles  of  Confederation  ;  "  South  Carolina  and  Maryland 
"  to  render  the  Federal  Constitution  entirely  adequate  to  the 
actual  situation."     Rhode  Island  held  aloof.     She  was  gov- 
erned by  a  class  of  men  who  wanted  to  pay  their  debts  in 
/   paper  money,  and  she  did  not  wish  to  surrender  her  power  to 
/    collect  duties  upon  the  goods  that  came  into  her  port.     The 
trade  of  Newport  at  that  day  surpassed  that  of  New  York. 
Connecticut  came  in  reluctantly,  and  New  Hampshire  late  in 
July,  1787.     The  convention  was  called  to  meet  on  the  2d 
day  of  May,  1787.     Eleven  days  passed  before  the  delegates 
from  seven  states  —  a  majority  —  appeared.     Then  an  organi- 
zation was  effected,  and  Washington  was  made  president  of 
I      the  convention.     The  delegates  from  some  of  the  other  states 
\     came  in. 

^  The  convention  is  justly  noted  for  the  ability  and  conserva- 
n   tive  character  of  its  members.     Altogether  there  were  fifty- 
five,  more  than  half  of  them  college  graduates.     Still  many 
names  great  in  the  revolutionary  struggle  were  absent  from 
I      the  roll  of   delegates.     John  and  Samuel  Adams,  and  John 
/      Hancock,  were  not  there.     Patrick  Henry  of  Virginia  refused 
I       to  attend.     Thomas  Jefferson  and  John  Jay  were  absent  from 
the  country. 

George  Washington  and  Ben  jaminjFranklin,  however,  were 
there.  Washington  was  certainly  the  foremost  in  that  honor 
and  respect  which  came  from  great  services  rendered  to  his 
country.  He  was  a  lucid  writer,  though  not  a  debater,  not  an 
educated  man,  scarcely  a  general  reader,  not  quick  in  percep- 
tion, but  in  solidity  of  judgment,  fairness  of  mind,  dignity  of 
character,  and  firmness  of  purpose,  he  was  the  ideal  American. 
Take  him  all  in  all,  alike  what  he  was  and  was  not,  what 
he  did  and  forbore  to  do,  he  is  the  greatest  man  in  all  our 
history.  Franklin  was  then  more  than  fourscore  years  of 
age.  He  was  renowned  throughout  the  civilized  world  as  a 
great  Utilitarian  philosopher,  a  leader  in  experimental  science, 
and  an  ornament  of  the  human  race.  Indeed,  he  is  the  great- 
est man  of  the  colonial  age,  and  he  would  have  been  a  great 
figure  in  the  greatest  age.  Could  he  have  been  the  companion 
of  Solomon,  Aristotle,  and  Bacon,  he  would  have  analyzed 
their  wisdom  and  philosophy  —  universal  expert  as  he  was  — 


/ 


CONSTITUTIONAL  CONVENTION.  63 

and  given  them  such  suggestions  as  would  have  made  them 
his  debtors.  There  was  some  thought  of  making  him  presi- 
dent, but  his  physical  strength  was  not  equal  to  the  position^ 
and  he  requested  the  appointment  of  Washington.  Among 
the  younger  men  was  James  Madison  of  Virginia,  destined, 
after  long  service  in  behalf  of  his  countw^,  to  become  the  fourth 
president  of  the  United  States.  He  Was  studious,  modest,  and 
thoughtful,  and  of  exceeding  wisdorn  in  council.  He  had  had 
an  instructive  experience  in  the  Continental  and  Confederate 
Congresses.  His  influence  in  ^naping  the  Constitution  as  it  "^ 
is  was  greater  than  that  of  aiafy  other  man.  He  was  the  last 
survivor  of  that  body,  and/4  grateful  country  justly  honors 
him  as  the  "  father  of  the^^onstitiition.'' 

Alexander  Hamilton  came  from  New  York.  He  was  but 
thirty  years  of  age,  but  for  many  years  had  been  the  adviser 
Qt_  Washington,  and  was  already  famous  for  his  marvellous 
ability.  He  had  a  genius  for  the  solution  of  governmental 
problems.  In  the  keenness  and  grasp  of  his  intellect,  he  had 
no  superior  in  the  convention,  and  many  of  his  admirers  thought 
he  had  no  intellectual  superior  anywhere.  But  his  influence 
in  the  convention  was  not  very  great,  for  the  simple  reason 
that  he  wanted  to  frame  a  stronger  government  than  his  as- 
sociates thought  it  wise  to  establish.  He  would  give  the  gov- 
ernment stability  and  strength.  He  would  have  the  executive 
and  senate  hold  office  for  life.  He  distrusted  a  democracy. 
Wherever,  he  said,  it  had  existed,  and  in  whatever  age,  it  was 
a  failure ;  the  vices  of  the  people  always  came  to  the  front, 
and  the  people  were  crushed  by  their  own  incapacity. 

Charles  C.  Pinckney  was  a  delegate  from  South  Carolina. 
His  broad  culture  and  liberal  views  gave  him  great  weight  in 
the  convention.  James  Wilson  of  Pennsylvania  was  a  Scotch- 
man. He  surpassed  all  others  in  his  exact  knowledge  of  the 
civil  and  common  law,  and  the  law  of  nations.  His  zeal  and 
wisdom  were  alike  great.  He  was  afterwards  one  of  the  jus- 
tices of  the  Supreme  Court  of  the  United  States.  Oliver 
Ellsworth  and  Roger  Sherman  came  from  Connecticut.  They 
were  wise  men.  But  their  usefulness  was  greater  from  the 
fact  that  they  came  from  a  state  that  had  always  been  free, 
and   been   governed   by  the   representative   principle,  whose 


64  CONSTITUTIONAL  HISTORY^^.— ^ 

towns  had  always  been,  as  they  still  are,  pure  democracies.  It 
was  in  Connecticut,  as  early  as  1639,  that  a  constitution  was 
written  out  as  a  complete  form  of  civil  order,  embodying 
all  the  essential  features  of  the  constitutions  of  the  American 
states  as  they  now  exist.  It  was  the  first  of  its  kind  in  the 
new  world.  The  state  had  the  address  to  have  its  provisions 
inserted  in  the  charter  of  Charles  II.  twenty-four  years  later. 

Many  of  the  fifty-five  delegates  shared  Hamilton's  CQn<"*"'T^p*" 
forademocrj^  but  the  strength  they  would^aiaoge  in  a  gov:^ 
ernment  they  preferred  to  retain  in  the  staj^.  Th^y  feared  if 
they  made  the  federal  government  a  strong  one,  it  would  be  a 
tyrant  over  the  states,  and  as  they  had  just  escaped  fro"m  one 
tyrant,  they  did  not  wish  to  create  another]  Sacrffice  flieir 
states  they  would  not,  but  they  were  willing  to  concede  much 
for  the  general  good,  if  they  could  see  a  safe  way  to  do  it. 

The  first  business  of  the  convention  was  ^^lie  adoption  of 
rules.  Each  state  was  to  have  one  vote.  Such  was  the  rule 
in  the  Confederate  Congress.  Seven  states  made  a  quorum. 
The  convention  was  to  sit  with  closed  doors,  and  everything 
was  to  be  kept  secret :  nothing  was  to  be  given  to  the  public 
except  the  completed  work.  This  injunction  of  secrecy  was 
never  removed.  Fortunately  James  Madison  kept  a  pretty 
full  account  of  the  debates  and  proceedings,  all  in  his  own 
hand.  He  lived  nearly  fifty  years  after  the  adoption  of  the 
Constitution,  dying  on  the  28th  day  of  June,  1836.  After 
his  death,  the  government  paid  his  widow  $30,000  for  his 
manuscripts.  These  were  published  in  1840,  are  known  as 
the  "  Madison  Papers,"  and  give  to  us  the  most  authentic  re- 
port extant  of  the  debates  of  that  body. 

It  was  expected  that  the  State  of  Virginia  would  take  the 
lead  in  the  convention  and  outline  some  scheme  for  adoption. 
Accordingly,  Edmund  Randolph,  the  governor  of  the  state, 
and  one  of  her  delegates,  introduced  in  fifteen  resolutions  the 
plan  submitted  by  that  state. 

I  make  an  instructive  extract  from  his  remarks  upon  the  in- 
troduction of  the  resolutions  :  — 

"  The  confederacy  was  made  in  the  iafancy  of  the  science  of  con- 
stitutions, when  the  inefficiency  of  requisitions  was  unknown ;  wheu 
no  commercial  discord  had  arisen  among  states ;  when  no  rebellion 


VIRGINIA   TAKES  THE  LEAD.  65 

like  that  in  Massachusetts  had  broken  out ;  when  foreign  debts  were 
not  urgent ;  when  havoc  of  paper  money  had  not  been  experienced ; 
and  when  nothing  better  could  have  been  conceded  by  states  jealous 
of  their  own  sovereignty.  But  it  offered  no  security  against  foreign 
invasion,  for  Congress  could  neither  prevent  nor  conduct  a  war,  nor 
punish  infractions  of  treaties,  or  of  the  law  of  nations,  nor  control 
particular  states  from  provoking  war.  The  federal  government  has 
no  constitutional  power  to  check  a  quarrel  between  separate  states ; 
nor  to  suppress  a  rebellion  in  any  one  of  them ;  nor  to  counteract  the 
commercial  regulations  of  other  nations  ;  nor  to  defend  itself  against 
encroachments  of  the  states.  From  the  manner  in  which  it  has  been 
ratified  in  many  of  the  states,  it  cannot  be  claimed  to  be  paramount 
to  the  state  constitutions,  so  that  there  is  a  prospect  of  anarchy  from 
the  inherent  laxity  of  the  government.  As  the  remedy,  the  govern- 
ment to  be  established  must  have  for  its  basis  the  republican  prin- 
ciple." 

What  did  Governor  Randolph  mean  by  the  "republican  \ 
jprinciple  ?  "  He  meant  that  the  power  to  be  vested  in  the 
government  should  come  from  the  people,  as  distinguished 
from  the  states,  and  hence  the  government  would  act  upon  the 
people  directly  from  its  own  authority  and  energy,  instead  of 
indirectly  through  the  states ;  that  the  government  should  act 
itself  instead  of  requesting  the  states  to  act,  and  that  the 
people  who  conferred  power  upon  the  states  should  in  like 
manner  confer  it  upon  the  general  government;  that  the 
j^eneral  government  should  be  a  government  of  the  peoplejn_ 
like  manner  as  the  state  was.  If  both  the  state  and  the  gen- 
eral government  should  derive  power  from  the  people,  then  the 
one  government  would  not  be  the  creation  of  the  other. 

Governor  Randolph's  remarks  show  that  experience  in  gov- 
ernment was  the  great  instructor  of  the  convention.  The  plan 
presented  by  him  contemplated  the  abandonment  of  the  Ar- 
ticles of  Confederation,  and  the  adoption  of  a  national  Consti- 
tution, with  executive,  legislative,  and  judicial  powers.  Mr. 
Pinckney  of  South  Carolina  also  presented  a  plan  with  fea- 
tures resembling  our  present  Constitution.  The  discussion  of 
Governor  Randolph's  plan  provoked  at  the  outset  the  impor- 
tant question  :  What  had  the  convention  authority  to  do,  —  to 
frame  a  new  Constitution  or  amend  the  old  ?     The  convention 

5 


^ 


66  CONSTITUTIONAL   HISTORY. 

wisely  determined  to  permit  the  previous  discussion  of  all 
plans  proposed,  and  thereby  find  out  what  plan  the  delegates 
were  most  likely  to  unite  upon,  and  thus  instructed,  they  would 
be  better  able  to  work  it  out.  The  discussion  disclosed  the 
general  opinion  to  be  that  it  did  not  much  matter  what  the 
authority  of  the  delegates  was,  since  whatever  they  recom- 
mended would  have  to  be  approved  by  the  people  or  by  the 
several  states  before  it  could  become  obligatory,  and  therefore 
they  had  better  present  the  best  plan  they  could.  The  con- 
vention considered  the  resolutions  of  Governor  Randolph  in 
committee  of  the  whole.  A  measure  may  be  adopted  in  com- 
mittee, and  rejected  by  the  House. 

On  the  13th  of  June,  the  chairman  of  the  committee,  as 
the  result  of  the  discussion,  reported  to  the  convention  nine- 
teen resolutions ;  the  first  was  that  a  national  government 
ought  to  be  established,  consisting  of  supreme  legislative, 
judiciary,  and  executive  departments.  The  second,  third, 
fourth,  seventh,  and  eighth  resolutions  provided  that  the  leg- 
islature should  have  two  branches,  the  numbers  of  both  to  be 
elected  by  the  people  of  the  several  states,  in  number^  equal 
to  their  proportion  of  the  whole  number  of  all  the  people. 

The  debate  which  followed  soon  disclosed  a  serious  division 
of  sentiment  between  the  large  states  and  the  small.  The 
large  states  favored  a  national,  self-acting,  central  government, 
with  a  legislature  of  two  branches,  both  to  be  chosen  by  the 
people  in  the  several  states  proportionately  to  their  respec- 
tive numbers.  Thirty  thousand  people  were  assumed  as  the 
proper  number  for  one  representative  in  Congress.  Taking 
this  basis,  and  reckoning,  as  was  proposed,  five  slaves  as  equal 
to  three  white  men,  Virginia  would  have  ten ;  Massachusetts, 
eight;  Pennsylvania,  eight;  New  York,  six;  Maryland,  six; 
Connecticut,  five;  North  Carolina,  five;  South  Carolina,  five; 
New  Jersey,  four  ;  Georgia,  three ;  New  Hampshire,  three  ; 
Rhode  Island,  one ;  Delaware,  one. 

Thus  it  was  seen  and  said  that  Virginia  would  be  ten  times 
greater  and  stronger  than  Rhode  Island  or  Delaware.  The 
small  states  objected  to  this  reduction  of  their  significance. 
When  the  vote  was  taken  in  committee,  to  which  the  subject 
was  again  referred,  this  national  scheme,  as  it  was  called,  was 


DIVISIONS  IN  THE   CONVENTION.  67 

carried  by  a  vute  of  six  states  to  five.  The  six  states  were 
Virginia,  Pennsylvania,  Massachusetts,  North  Carolina,  South 
Carolina,  and  Georgia.  The  five  states  were  New  York,  New 
Jersey,  Connecticut,  Delaware,  and  Maryland.  New  Hamp- 
shire was  still  absent,  and!  Rhode  Island  never  was  present. 

It  is  interesting  to  observe  that  New  York  voted  with  the 
smaller  states,  and  that  the  two  Carolinas  and  Georgia  voted 
with  the  greater  states.  New  York  did  not  then  foresee  that 
in  the  race  of  progress  she  was  so  soon  to  pass  from  the  fourth 
in  rank  to  the  first. 

North  Carolina  and  Georgia  were  then  great  in  extent. 
Their  territories  extended  from  the  ocean  to  the  Mississippi, 
and  they  confidently  anticipated  a  greatness  in  the  future  far 
surpassing  their  northern  sisters.  Georgia  was  greater  in  ter- 
ritorial extent  than  the  whole  island  of  Great  Britain.  It 
seemed  inevitable  that  these  vast  tracts  of  land,  favored  with 
a  fertile  soil  and  a  genial  climate,  would  become,  not  re- 
motely, the  homes  of  a  mighty  people. 

South  Carolina  ceded  her  unoccupied  western  lands  to  the 
United  States  on  the  8th  day  of  August,  1787,  while  this  con- 
vention was  in  session. 

The  division  was  entirely  natural.  The  larger  states,  with 
all  their  population,  wealth,  and  industries,  were  unwilling 
to  be  placed  on  a  par  in  the  new  government  with  the  little 
ones.  Should  such  a  state  as  Virginia,  ten  times  as  great  as 
Delaware,  New  Hampshire,  or  Rhode  Island,  be  stripped  of  her 
power  by  their  combinations,  and  compelled  to  obey  as  they 
might  dictate  ?  In  such  a  government  as  it  was  necessary  to 
form,  should  not  the  representatives  of  the  people  be  in  pro- 
portion to  the  number  of  the  people  ?  Should  the  inhabitants 
of  Virginia  be  disfranchised  as  the  penalty  of  their  residing  in 
that  state?  They  might  as  well  be  governed  by  Great  Brit- 
ain as  by  a  combination  of  little  states.  But  the  small  states 
were  equally  in  earnest.  They  said,  Is  not  each  a  sovereign 
state,  and  can  a  sovereign  state  without  humiliation  enter 
into  any  agreement  with  another  state,  except  upon  terms 
of  equality  ?  The  moment  she  surrenders  her  equality  of 
power,  she  throws  away  her  rights  and  power  to  protect  her- 
self.     If    representation   is   to   be   according   to    population 


68  CONSTITUTIONAL   HISTORY. 

/then  the  states  are  unequal  in  power ;  the  great  states  will 
make  what  laws  they  please,  however  injurious  or  disagree- 
able to  the  other  states,  and  they  will  always  prevent  the 
small  states  from  making  any  laws,  however  necessary  and 
proper,  if  not  agreeable  to  their  views. 

Mr.  Luther  Martin,  a  delegate  from  Maryland,  was  very 
emphatic  in  his  opposition.  "  It  is,"  he  said,  "  a  system  of 
slavery  which  binds,  hand  and  foot,  ten  states  in  the  Union, 
and  places  them  at  the  mercy  of  the  other  three."  A  state- 
rights  party  began  to  exist.  This  party,  under  the  lead  of 
Mr.  Paterson  of  New  Jersey,  asked  and  obtained  time  in 
which  to  mature  a  scheme  of  federal  equality,  as  it  was 
termed.  They  submitted  a  plan  of  amendment  of  the  Arti- 
cles of  Confederation  so  as  to  *'  render  the  federal  Constitu- 
tion adequate  to  the  exigencies  of  government  and  the  pres- 
ervation of  the  Union." 

The  leading  features  of  this  scheme  were  :  Congress  was  to 
be  given  power  to  raise  a  revenue  by  levying  and  collecting 
duties  on  imports  ;  to  regulate  commerce ;  to  establish  ap- 
pellate courts  having  jurisdiction  in  matters  of  revenue ;  to 
pass  laws  to  enforce  obedience  to  the  requisitions  of  Con- 
gress ;  to  elect  a  federal  executive  of  several  persons. 

The  convention  now  had  two  schemes  before  it.     The  one 

was  called  the  Virginia,  the  other  the  New  Jersey  plan ;  the 

_  one  a  Ijajjongl^hft  nt.hpi;^^JVdftraj_jJHjT^^  pro- 

posed  a  new  Constitution,  the  other  proposed  to  amend  the 

In  the  debates  that  followed,  the  central  question  was: 
Shall  we  have  a  government  of  thp  people,  or  a  compact  of 
the_states^  The  debates  were  earnest,  able,  animated,  and 
not  always  free  from  threats  of  disruption  and  dissolution  of 
the  convention.  Many  delegates  became  alarmed.  The  aged 
Franklin  was  so  apprehensive  of  the  impossibility  of  agree- 
ment that,  in  order  to  tranquillize  the  minds  of  opposing  del- 
egates, he  proposed  that  a  chaplain  be  appointed  and  prayers 
be  read.  It  is  stated  in  some  histories  that  Franklin's  sug- 
gestion was  adopted.  But  Mr.  Madison  is  authority  for  the 
statement  that  this  is  not  true.  He  himself  opposed,  because 
he  was  afraid  that  if  prayers  were  now  read  for  the  first  time, 


DIFFERENCES  COMPROMISED.  69 

the  fact  would  alarm  the  country  by  the  suggestion  that  the 
afifairs  of  the  convention  were  in  a  desperate  strait.  Other 
authority  informs  us  that  the  reason  why  they  did  "not  engage 
a  chaplain  was  because  they  had  no  money  to  pay  him. 
Franklin  soon  after  suggested  a  compromise  of  the  opposing 
plans,  and  a  committee  was  appointed  to  mature  it.  The 
committee  agreed  upon  a  compromise  and  the  convention 
adopted  it. 

The  main  features  of  the  compromise  were  that  in  the 
Senate  every  state  should  have  the  same  number  of  senators ; 
that  in  the  House  every  state  should  be  represented  in  pro- 
portion to  its  population. 

It  was  urged  that  thus  the  equality  of  the  states  in  the  one 
body,  and  the  equality  of  people  in  the  other,  would  be  se- 
cured, and  as  both  bodies  must  concur  in  the  passage  of  a 
law,  the  states  would  be  a  check  upon  the  people,  and  the 
people  a  check  upon  the  states.     It  was  well  done. 

Independently  of  the  question  of  the  equality  of  the  states, 
the  question,  whether  the  national  Congress  should  be  com- 
posed of  two  bodies  or  of  one,  was  much  discussed.  Those 
who  wished  simply  to  amend  the  Articles  of  Confederation  fa- 
vored one  body.  But  in  the  end  the  argument  in  favor  of 
two  bodies  prevailed.  Two  houses,  it  was  said,  were  safer 
than  one. 

The  members  of  the  lower  house  should  be  frequently 
chosen,  the  better  to  represent  the  people.  But  such  a  body 
would  naturally  lack  experience,  wisdom,  stability,  and  dig- 
nity of  character ;  it  would  be  swayed  by  popular  prejudice 
and  clamor  ;  it  would  be  misled  by  demagogues ;  it  would  be 
rash  in  its  expedients  and  propositions,  and  liable  to  do  great 
mischief,  with  possibly  the  best  of  motives. -^t  would  be  in 
the  highest  degree  useful  as  the  representative  of  the  people, 
but  not  entirely  safe  as  their  sole  legislator.  Moreover,  the 
sense  of  the  responsibility  of  the  individual  member  would  be 
dissipated  among  so  large  a  number;  and  the  wisdom  of  the 
few  might  be  overborne  by  the  passions,  the  prejudice,  or  the 
cupidity  of  the  many. 

These  suggestions  were  indeed  weighty.  Given,  it  was 
said,  a  second  house,  of  fewer  numbers,  chosen  not  by  the 


(I 


V>^  Qai  itnRt<^^ 


70  CONSTITUTIONAL  HISTORY. 

people  but  by  their  wiser  state  legislators,  and  for  longer 
terras,  and  the  result  is  a  smaller  body  of  wise,  able,  experi- 
enced, and  safe  men.  Such  a  body  would  moderate  the  im- 
petuosity and  rashness  of  the  popular  branch,  would  detect 
and  correct  their  foll}^  and  approve  their  just  resolves.  Each 
body  would  be  helpful  to  the  other,  and  with  both  a  very 
high  degree  of  safety  would  be  secured.^  The  argument  is  no 
doubt  sound,  and  stands  approved  by  the  subsequent  experi- 
enee  in  this  country  and  in  nearly  every  constitutional  state 
in  Europe. 

Mr.  Hamilton,  after  the  Constitution  was  adopted,  pro- 
nounced it  to  be  the  chief  maxim  of  the  government  to  raise 
up  departments  whose  interests  and  inclinations  should  be 
opposed  to  each  other,  so  that  if  one,  yielding  to  some  peculiar 
pressure,  might  prove  false  or  faithless  to  the  interests  of  the 
nation  or  the  liberties  of  the  people,  another,  remaining  inde- 
pendent or  unmoved,  might  defend,  maintain,  and  preserve 
them. 

There  was  also  much  discussion  with  respect  to  the  choice, 
the  personality,  and  the  power  of  the  executive. 

Sliould  there  be  one  president,  or  several  ?  Great  fear  was 
expressed  lest  one  man,  whether  called  president,  governor, 
consul,  or  chief,  would,  if  great  care  were  not  observed,  de- 
velop into  a  king.  "  Unity  in  the  executive  office,"  said 
Randolph,  "  is  the  fcetus  of  monarchy." 

The  argument  in  favor  of  one  man  instead  of  several  was, 
that  with  one  there  could  be  no  dissension  in  council,  no  divi- 
sion in  decision  or  action,  no  escape  from  responsibility.  The 
argument  was  strong  and  it  prevailed.  How  should  he  be 
chosen?  By  the  people,  by  the  governors  of  the  states,  by 
their  legislatures,  by  Congress,  or  by  electors  to  be  chosen  as 
each  state  should  appoint?     They  decided  that  the  President 

1  It  is  said  that  Washington  and  Jefferson  once  at  supper  discussed  the  wisdom 
of  having  two  legislative  chambers.  Jefferson  contended  that  one  was  enouirh, 
according  to  the  plan  then  prevailing  in  France.  Washington  contended  for 
two.  In  the  course  of  the  discussion,  Jefftrson  poured  out  his  hot  tea  from  his 
cup  into  his  saucer.  "  Why,"  said  Washington,  "  do  you  do  that  ?  "  "  To  let 
the  tea  cool,"  said  Jefferson.  "  Quite  right,"  said  Washington,  "and  just  so. 
we  need  two  legislative  chambers  to  give  the  judgments  of  legislators  a  chance 
to  cool." 


TJHE  EXECUTIVE  OFFICE.  It 

was  too  important  an  officer  to  be  chosen  by  the  people. 
Sherman  of  Connecticut  said,  "  The  less  the  people  had  to  do 
with  the  government,  the  better."  Gerry  of  Massachusetts 
said,  "  All  the  evils  we  experience  flow  from  an  excess  of 
democracy."  Mason  of  Virginia  and  Wilson  of  Pennsyl- 
vania combatted  these  views.  "  Without  the  confidence  of 
the  people,"  said  Wilson,  "  no  government,  least  of  all  a  re- 
publican government,  can  long  endure." 

The  South  Carolina  delegates  thought  that  the  people  were 
so  widely  scattered  that  the  fewer  elections  by  them,  the  bet- 
ter. The  New  England  States  wanted  elections  often.  To 
allow  the  states  to  choose  a  president  would  maintain  all  the 
states  upon  an  equality.  It  was  finally  agreed  that  there 
should  be  a  college  of  electors,  chosen  in  each  state  in  such 
manner  as  its  legislature  should  direct,  equal  to  the  whole 
number  of  senators  and  representatives  to  which  the  state 
should  be  entitled  in  Congress ;  and  that  these  electors  should 
choose  the  President.  The  idea,  borrowed  from  the  Consti- 
tution of  Maryland,  was  that  wise  men,  carefully  chosen, 
would  themselves  exercise  this  important  office  with  great 
care  and  wisdom.  Our  good  fathers  did  not  foresee  that  after 
all  their  expressed  distrust  of  the  people,  this  body  of  electors 
would  not  have  the  courage  to  disobey  the  voice  of  the  people 
as  previously  expressed  in  their  party  conventions.  It  is  not 
necessary  to  say  that  in  practice  the  intention  of  the  conven- 
tion is  defeated. 

How  long  should  the  President  hold  office  ?  Hamilton 
urged,  during  good  behavior,  or  for  life.  Some  proposed  one 
term,  others  another.  It  was  at  one  time  resolved  that  he 
should  serve  for  seven  years  and  be  ineligible  to  reelection. 
Later,  the  term  was  changed  to  four  years ;  the  clause  declar- 
ing his  re-ineligibility  was  dropped  out  upon  the  final  revision, 
for  reasons  not  disclosed.  It  is  probable  that  the  reason  was 
that  the  convention  supposed  that  Washington  would  be  made 
President,  and  that  it  would  be  desirable  to  continue  him  in 
the  office  for  life. 

A  Vice-President  was  provided  for,  to  act  as  President  in 
case  of  a  vacancy,  or  of  the  disability  of  the  President.  It 
was  seen  that  his  office  would  be  a  weary  void,  and  to  give 


72  CONSTITUTIONAL  HISTORY. 

him  some  relief  and  excuse  for  existence,  he  was  made  Presi- 
dent of  the  Senate. 

The  duties  of  the  President  were  prescribed.  ^  As  the  first 
oflBcer  of  the  nation,  it  was  agreed  that  he  ought  to  be  the 
commander-in-chief  of  the  army  and  navy,  but  state-rights  in- 
terposed and  denied  him  the  command  of  the  militia,  except 
when  it  was  called  into  the  actual  service  of  the  United  States. 
He  was  permitted  to  make  treaties  by  and  with  the  advice 
and  consent  of  the  Senate,  and  could  therefore  make  peace  ; 
but  he  was  not  permitted  to  declare  war,  lest  his  ambition 
should  lead  the  nation  into  useless  wars.  That  power  was 
vested  in  Congress.  Vast  and  almost  unlimited  executive 
powers  were  conferred  by  the  provisions,  "  The  executive 
power  shall  be  vested  in  a  President,"  and  ''  he  should  take 
care  that  the  laws  be  faithfully  executed."  He  was  authorized 
to  convene  Congress  or  either  house  upon  extraordinary  occa- 
sions ;  and  appoint,  by  and  with  the  advice  and  consent  of  the 
Senate,  certain  officers  of  the  United  States.  The  Constitu- 
tion does  not  vest  in  the  Senate  any  power  with  respect  to 
the  removal  of  these  oflBcers.  That  power,  unless  the  law 
which  creates  the  office  otherwise  provides,  probably  rests  in 
the  President  alone. 

Various  propositions  were  made  to  surround  the  President 
by  an  executive  or  privy  council,  or  some  sort  of  advisers. 
Mr.  Madison  proposed  that  he  should  have  a  council  of  six, 
two  from  the  Eastern,  two  from  the  Middle,  and  two  from 
the  Southern  States.  Mr.  Madison  could  not  well  take 
thought  of  that  vast  empire  west  of  the  Mississippi,  over 
which  the  flags  of  Spain  and  France  alternately  waved,  which 
he  was  to  be  permitted  to  see  a  part  of  the  nation.  The 
discussion  ended  in  abandoning  all  these  suggestions.  The 
only  expression  in  the  Constitution  authorizing  a  gabinet  is, 
"  the  principal  officer  in  each  of  the  executive  departments," 
whose  opinion  the  President  may  require  in  writing.  His 
independence  of  Congress  and  influence  over  legislation 
were  provided  for  by  giving  him  a  qualified  veto  power.  His 
fidelity  was  secured  by  his  oath  of  office  and  liability  to  im- 
peachment. 
^     The  federal  Judiciary  was  the  subject  of  the  careful  atten- 


JUDICIARY  DEPARTMENT.  T3 

tion  of  the  very  able  lawyers  of  the  convention.  To  make 
this  department  as  independent  as  possible,  it  was  agreed  that 
the  judges  should  hold  office  during  good  behavior.  It  was 
also  agreed  that  it  should  not  have  any  jurisdiction  over  cases 
arising  in  a  state,  between  its  citizens,  in  respect  to  matters 
wholly  controlled  by  state  laws.  But  it  was  agreed  that  the 
court  should  have  jurisdiction  over  cases  controlled  by  the 
laws  of  the  United  States,  its  Constitution,  and  treaties.  And 
then  it  was  seen  that  when  a  case  arose  between  citizens  of 
different  states,  the  United  States  court  would  not  be  preju- 
diced by  state  influence  against  either  suitor;  that  contro- 
versies might  arise  between  states,  which  in  the  interests  of 
peace  ought  to  be  fairly  tried  and  decided ;  that  it  might  hap- 
pen that  a  state  would  sometimes  sue  a  citizen  of  another  or 
of  a  foreign  state ;  that  the  United  States  might  become  a 
party  to  a  suit ;  and  that  admiralty  and  maritime  cases  would 
spring  from  our  shipping  interests.  In  these  cases  it  was 
agreed  that  the  United  States  courts  would  be  the  proper 
tribunal.  If  a  foreign  ambassador  or  consul  should  be  sued 
while  he  was  accredited  to  the  United  States,  the  courtesy 
due  him  and  his  country  made  it  fitting  that  he  should  not 
be  required  to  answer  except  in  the  most  exalted  court  of  the 
nation.  If  a  state  should  be  a  party,  it  would  not  be  digni- 
fied for  it  to  be  cited  by  any  inferior  court.  It  was  resolved 
to  provide  a  Supreme  Court  and  inferior  courts.  Out  of  com- 
pliment to  states  and  the  representatives  of  foreign  countries, 
their  cases  should  be  tried,  in  the  first  instance,  in  the 
Supreme  Court ;  but  all  the  other  cases  should  be  tried  in  the 
first  instance  before  some  one  of  the  inferior  courts.  To  the 
Supreme  Court  was  given  appellate  jurisdiction.  Now  all 
this  seems  very  simple.  But  in  these  simple  regulations  lies 
the  most  remarkable,  the  most  admirable,  and  the  most  im- 
portant provision  of  the  whole  Constitution.  Without  it  the 
system  would  no  doubt  have  proved  a  failure.  This  appellate 
jurisdiction  of  the  Supreme  Court  has,  more  than  any  other 
agency,  composed  dissensions,  settled  conflicting  claims,  and 
defined  the  powers  by  which  the  nation  has  developed  into 
its  stable  greatness.  Experience  under  the  confederacy  had 
taught  the  lesson  that,  whatever  the  powers  vested  in  the 


'<A;>p 


74  CONSTITUTIONAL  HISTORY. 

national  government,  they  must  be  protected  from  the  en- 
croachment of  the  states,  otherwise  they  would  be  sooner  or 
later  destroyed.  \It  was  foreseen  that,  whatever  guards  might 
be  written  in  the  national  Constitution  to  preserve  the  na- 
tional authority  from  state  encroachment,  the}^  would  prove 
worthless,  unless  some  final  and  supreme  power  should  be 
competent  to  declare  all  state  infringement  upon  the  national 
power  void. 

-Thus  was  presented  a  vital  question  of  the  utmost  delicacy 
and  difficulty.  Suppose  the  states  should  enact  laws  in  con- 
flict with  the  United  States  Constitution,  and  its  laws  and 
treaties ;  how  could  the  difficulty  and  danger  be  overcome  ? 
The  delegates  were  familiar  with  the  theory  that  the  crown, 
with  respect  to  legislation,  might  interpose  its  veto;  and  it 
was  suggested  that  the  like  power  ought  to  be  vested  in  some 
department  of  the  national  government  with  respect  to  state 
laws  in  conflict  with  the  United  States  Constitution,  laws,  or 
treaties.  But  the  exercise  of  such  a  power  would  inevitably 
be  the  occasion  of  constant  irritation  to  the  states,  and  would 
imperil  the  whole  system.  Suppose  state  after  state  should 
pass  such  laws,  .and  the  United  States  should  veto  them,  as 
it  of  necessity  must,  the  states  might  make  common  cause 
against  the  United  States  and  thus  destroy  the  national  gov- 
ernment. The  problem  was  of  the  utmost  gravity.  Insep- 
arable from  it  was  another  problem  equally  momentous. 
Suppose  the  United  States,  notwithstanding  its  enumerated 
powers,  should,  in  the  plenitude  of  its  strength  and  inordi- 
nate desire  of  centralization,  assume  to  itself  powers  not  dele- 
gated, and  encroach  upon  the  reserved  powers  of  the  states. 
What  remedy  would  the  states  have,  except  resistance  and 
rebellion  ?  .-The  difficulty  was  at  last  happily  solved  by  giv- 
ing the  Supreme  Court  appellate  jurisdiction,  and  thus  mak- 
ing it  the  final  arbiter.  One  section  extended  the  judicial 
power  to  all  cases  in  law  and  equity  arising  under  the  Consti- 
tution, and  another  declared,  "  This  Constitution,  and  the  laws 
of  the  United  States  which  shall  be  made  in  pursuance  there- 
of, and  all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law  of 
the  land ;  and  the  judges  in  every  state  shall  be  bound  there- 


SUPREMACY   OF  THE  JUDICIARY.  75 

by,  anything  in  the  Constitution  or  laws  of  any  state  to  the 
contrary  notwithstanding." 

Under  these  happy  provisions,  whatever  law  any  state  may 
pass,  no  matter  how  much  it  conflicts  with  the  Constitution  of 
the  United  States,  it  may  go  upon  the  statute  book  of  the  state 
without  exciting  the  least  apprehension  or  alarm.  There  it 
will  quietly  repose  until  somebody  seeks  to  assert  or  deny  the 
right  or  duty  which  this  law  purports  to  confer  or  deny.  The 
opposite  party  then  challenges  the  state  law  as  forbidden  by 
the  supreme  law  of  the  Constitution  of  the  United  States. 
An  appeal  is  taken  to  the  Supreme  Court  of  the  United  States, 
and  that  court  decides  whether  the  state  law  is  valid  or  void. 
If  it  decides  that  it  is  void,  it  is  to  all  intents  and  purposes  not 
merely  practically  repealed,but  declared  never  to  have  existed. 

In  like  manner,  if  Congress  enact  any  law  in  conflict  with 
the  Constitution  of  the  United  States,  whether  by  violating 
the  rights  reserved  to  the  states,  or  by  exercising  powers  not 
conferred  by  the  Constitution,  the  Supreme  Court,  whenever 
a  case  comes  before  it  in  which  the  question  can  be  raised,  de- 
clares the  act  of  Congress  void.  It  is  true  there  are  some 
cases  of  the  appropriation  of  public  moneys,  and  the  exercise 
of  powers  by  the  general  government,  in  which  the  Constitu- 
tion may  be  violated,  and  no  individual  be  so  injuriously  af- 
fected as  to  have  any  proper  cause  to  commence  a  lawsuit  to 
test  the  question.  In  such  cases  the  Supreme  Court  cannot 
interfere.  The  only  protection  against  such  abuses  is  either 
by  amendment  of  the  Constitution,  or  by  an  appeal  to  the 
people  to  defeat  the  reelection  of  the  offenders.  But  we  shall 
examine  this  subject  more  fully  hereafter. 

The  powers  of  the  executive  and  judicial  departments  hav- 
ing been  pretty  definitely  agreed  upon,  it  remained  to  pre- 
scribe the  powers  which  should  be  given  to  Congress,  and  to 
draw  the  lines  as  plainly  as  possible  between  the  functions  of 
the  state  and  national  governments.  A  resolution  was  adopted 
that  power  should  be  conferred  upon  Congress  *'  to  legislate 
for  the  general  interests  of  the  Union,  for  cases  to  which  the 
states  are  separately  incompetent,  and  for  cases  in  which  the 
harmony  of  the  United  States  might  be  interrupted  by  the 
exercise  of  individual  legislation."     The  convention  tried  to 


76  CONSTITUTIONAL  HISTORY. 

work  close  to  the  lines  thus  laid  down.  "  The  general  inter- 
ests of  the  Union,"  or  as  it  was  put  in  the  Constitution,  "gen- 
eral welfare,"  was  always  construed  to  mean  that  welfare 
"  for  which  the  states  are  separately  incompetent "  to  provide, 
a  signification  which  modern  statesmen  are  not  always  able  to 
appreciate ;  otherwise  they  would  not  seek  under  the  "  general 
welfare  "  clause  to  meddle  with  matters  for  which  every  state 
is  separately  competent  to  make  such  provision  for  itself  as  it 
thinks  proper.  This  construction  the  convention  illustrated 
by  carefully  enumerating  the  powers  delegated  to  Congress, 
and  to  the  United  States.  Thus  the  great  powers  to  declare 
war,  to  provide  an  army  and  navy,  to  coin  and  borrow  money, 
to  lay  and  collect  taxes  and  duties,  to  acquire  and  protect  a 
seat  for  the  national  capitol,  to  enact  patent  and  copyright 
laws,  to  establish  post-offices,  to  admit  new  states,  to  govern 
territories,  to  make  uniform  rules  for  naturalization  and  bank- 
ruptcy, and  a  uniform  standard  of  weights  and  measures,  to 
establish  the  courts  of  the  United  States,  plainly  concern  the 
general  welfare.  They  are  powers  for  the  proper  exercise  of 
which  the  states  are  separately  incompetent.  Then,  there 
were  duties  which  the  United  States  were  declared  to  owe  to 
the  states :  thus,  to  guarantee  to  every  state  a  republican  form 
of  government,  and  to  protect  it  from  invasion,  and  from  such 
domestic  violence  as  Shays'  rebellion  had  threatened  in  Mas- 
sachusetts. 

The  above  cases  in  which  power  was  expressly  given  to 
Congress  were  understood  to  be  some  of  the  cases  in  which 
"  the  harmony  of  the  United  States  might  be  interrupted  by 
the  exercise  of  individual  legislation  ;  "  but  there  were  others 
so  obnoxious  in  themselves,  or  dangerous  to  the  general  wel- 
fare, that  they  were  felt  to  demand  express  enumeration.  The 
times  had  been  fertile  in  suggestions  of  small  confederations  of 
states.  The  Eastern  States,  the  Middle  States,  the  Southern 
States,  were  by  many  supposed  to  be  natural  divisions,  and  to 
have  so  few  interests  in  common  with  the  other  sections  that 
three  confederacies  might  be  probable  creations  of  the  near 
future.  There  were  also  the  people  who  had  built  their  cabins 
beyond  the  Alleghany  Mountains,  whose  outlet  to  the  sea  was 
by  way  of  the  Mississippi  River.     It  was  feared  that  these 


CONVENTION  HARD  AT  WORK.  77 

adventurous  and  fearless  pioneers,  cut  off  by  the  mountains 
from  the  Atlantic  seaboard,  might  form  their  own  confedera- 
tions, joining  possibly  with  Spain,  who  held  the  mouth  of  the 
great  river  and  barred  the  outlet  to  the  Gulf.  Hence  it  was 
provided  that  "  no  state  shall  enter  into  any  treaty,  alliance, 
or  confederation."  A  few  years  later  Aaron  Burr  was  brought 
to  trial  for  treason  against  the  United  States.  The  possibility 
of  founding  an  empire,  whose  boundaries  should  embrace  the 
vast  water-shed  which  discharges  its  floods  through  the  deltas 
of  the  Mississippi,  charmed  the  imagination  and  tempted  the 
ambition  of  this  brilliant  and  active  man.  But  he  stopped 
short  of  levying  war,  and  hence  escaped  conviction. 

The  states  were  expressly  forbidden  to  make  any  more 
paper  money,  or  anything  else  but  gold  or  silver,  a  legal  ten- 
der ;  to  coin  money,  to  emit  bills  of  credit,  or  to  pass  any  law 
impairing  the  obligation  of  contracts.  Thus  it  was  sought  to 
promote  the  general  welfare  by  cutting  off  this  fruitful  source 
of  dishonest}^ 

It  was  thought  that  possibly  a  state  might,  under  peculiar 
circumstances,  exercise,  with  the  consent  of  Congress,  some 
national  powers  ;  and  it  was  provided  that,  without  such  con- 
sent, no  state  should  lay  any  duties  upon  imports  or  exports, 
except  the  trifle  necessary  to  pay  for  their  inspection,  or  lay 
any  duty  of  tonnage,  keep  troops  or  ships  of  war  in  times  of 
peace,  engage  in  war  unless  actually  invaded  or  in  imminent 
danger  of  it,  or,  such  was  the  repeated  caution  of  the  conven- 
tion, enter  into  any  agreement  or  compact  with  another  state 
or  foreign  power. 

It  was  regarded  as  settled  law  by  the  members  of  the  con- 
vention that  no  powers  could  exist  in  the  United  States  gov- 
ernment except  those  enumerated  in  the  constitutional  grant 
of  powers,  and  those  which  it  would  be  necessary  to  employ  in 
order  to  carry  out  the  enumerated  powers.  Hence  it  was  that 
they  refused  to  insert  a  bill  of  rights,  any  further  than  to  say 
that  the  citizens  of  each  state  should  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several  states. 
That  is  to  say,  when  the  citizen  of  New  York  should  go  to 
New  Jersey,  he  should  be  entitled  to  just  as  fair  treatment  as 
if  he  were  a  citizen  of  New  Jersey,  and  New  Jersey  could 


i^^- 


■•V 


78  CONSTITUTIONAL  HISTORY. 

make  hei^bill  of  rights  as  full  as  she  chose.  But  there  were 
some  powers  which  greatly  excited  the  fears  of  some  of  the 
delegates,  and  it  was  thought  prudent  expressly  to  deny  them 
to  the  United  States. 

And  so  the  power  was  expressly  denied  to  suspend  the  privi- 
lege of  the  writ  of  habeas  corpus  except  when  the  public  safety 
should  be  endangered  by  rebellion  or  invasion  ;  to  tax  exports  ; 
to  give  preference  by  any  regulation  of  commerce  or  revenue 
to  one  port  over  another ;  to  prevent  free  commerce  by  vessels 
between  states  ;  to  draw  any  money  from  the  treasury  except 
under  an  appropriation  made  by  law ;  or  to  make  any  reli- 
gious test  a  qualification  for  office.  Both  state  and  nation  were 
forbidden  to  pass  any  bill  of  attainder,  or  ex  post  facto  law,  or 
confer  any  title  of  nobility. 

Slavery  was  discussed.  It  was  regarded  as  a  state  institu- 
tion, with  which  it  was  not  expedient  for  the  convention  to 
interfere.  Such  interference  would  cause  the  Constitution  to 
be  rejected  by  the  slave-holding  states.  The  subject,  however, 
came  up  in  considering  the  question  of  enumerating  the  peo- 
ple of  a  state  for  the  purposes  of  taxation  and  representation. 
Should  the  slaves  be  counted  ?  Yes,  if  people  ;  no,  if  prop- 
erty. There  were  but  few  slaves  in  the  Northern  States.  In 
some  states  they  had  been  set  free,  and  in  some  others  the 
process  had  begun. 

The  northern  sentiment  was  hostile  to  slavery  on  moral 
grounds,  and  especially  hostile  to  the  slave-trade;  though 
northern  men  were  not  free  from  the  reproach  that  they  had 
shared  in  the  business  and  profits  of  the  trade. 

If  the  slave  is  property,  said  the  northern  delegates,  you 
have  no  more  right  to  count  him,  than  we  have  to  count  our 
mules.  If  we  allow  you  to  count  him,  we  encourage  the 
further  importation  of  slaves,  which  we  want  you  to  stop. 
The  South  replied ;  we  grant  the  slave  is  property,  but  five 
slaves  can  produce  as  much  as  three  freemen,  and  are  there- 
fore equal  to  three  freemen  in  developing  the  national  wealth. 
You  must  obtain  national  revenue  by  direct  taxation ;  you 
agree  that  taxation  and  representation  must  go  together  ;  and 
if  we  count  the  slave  for  the  purposes  of  representation,  we 
thereby  consent  that  he  be  counted  for  the  purposes  of  taxa- 


POWERS  CONFERRED   AND   DENIED.  79 

tion  ;  you  thus  will  get  the  benefit  of  our  counting  him.  We 
are  willing  to  compromise  the  question  on  that  basis.  The 
compromise  was  accepted ;  five  slaves  became  the  equal  of 
three  freemen  for  the  purposes  of  representation  and  taxation. 
Whether  the  North  yielded  its  conscientious  scruples  any 
more  easily  because  of  the  supposed  benefit  of  counting  the 
slave  for  the  purposes  of  taxation  cannot  be  answered.  If  so, 
it  was  badly  cheated  ;  for  there  never  has  been  much  rea:)rt  to 
direct  taxation.  The  duties  upon  imports,  and  the  excises  on 
whiskey  and  tobacco,  and  sometimes  on  other  articles,  have 
provided  all  the  revenues.  Direct  taxation  has  been  necessary 
in  only  a  few  cases,  and  tlien  but  for  a  very  short  time. 

That  duties  should  be  laid  upon  importations  from  foreign 
countries  was  conceded  to  be  a  power  which  ought  to  be 
vested  in  the  United  States  and  taken  away  from  the  states. 
Thus  a  national  revenue  would  be  provided,  and  the  duties 
would  be  uniform  in  every  port.  The  commercial  states  of 
the  North  thought  they  were  making  a  great  sacrifice  in  sur- 
rendering this  privilege,  and  they  urged  that  the  like  power 
to  impose  duties  upon  exports  should  also  be  vested  in  the  gen- 
eral government.  But  the  South  was  firm  in  its  opposition 
to  this  proposition.  The  South  was  not  a  commercial  people. 
It  exported  largely  tobacco  grown  in  Virginia  and  North  Car- 
olina, and  rice  and  indigo  grown  in  the  two  Carolinas  and 
Georgia.  Cotton  was  scarcely  known.  The  cotton  gin  and 
the  power  loom  had  not  then  been  invented.  Northern  men 
were  traders.  Their  merchant  marine  was  known  in  almost 
every  foreign  port.  The  northern  delegates  pressed  the  ques- 
tion of  duties  upon  exports.  Our  exports,  said  the  two  Caro- 
linas and  Georgia,  are  our  only  means  of  getting  any  money. 
We  must  buy  from  you,  and  pay  duties  upon  the  goods  your 
ships  bring  us  from  abroad.  If  you  insist  upon  taxing  our 
resources  at  both  ends,  both  when  we  buy  and  sell,  the  busi- 
ness is  at  an  end,  we  will  stay  out  of  the  Union.  But  we  con- 
sent that  you  tax  imports  —  that  tax  falls  upon  the  consumer. 
We  and  our  slaves  are  consumers,  and  perhaps  we  shall  con- 
sume more  than  you  and  thus  pay  more.  The  North  was 
constrained  to  agree,  and  the  result  was  that  a  tax  might  be 
imposed  upon  imports,  but  no  tax  could  ever  be  imposed  upon 
exports. 


80  CONSTITUTIONAL  HISTORY. 

The  power  to  regulate  commerce  with  foreign  nations  was 
much  discussed.  It  involved  the  power  to  pass  laws  to  regu- 
late or  exclude  the  entry  of  foreign  ships  into  our  ports.  The 
North  wanted  to  give  the  United  States  full  power.  As  the 
South  did  not  own  ships,  it  could  get  no  benefit  from  the 
regulations,  and  might  be  compelled  to  pay  too  high  prices  to 
the  North  on  freights.  But  foreign  countries  had  not  dealt 
with  the  American  traders  liberally ;  the  British  Orders  in 
Council  excluded  our  ships  from  the  West  India  ports  alto- 
gether. We  must  have  the  power  of  retaliation  or  we  might 
be  driven  from  the  seas.  The  United  States  must  have  the 
power  to  make  the  regulations,  and  they  must  be  uniform  in 
all  the  states,  in  order  that  favorable  treaties  might  be  made. 
The  South  agreed  to  the  justice  of  the  proposed  power,  but 
wanted  protection  against  its  unjust  application. 

The  South  finally  proposed  the  provision  that  Congress 
might  regulate  commerce  with  foreign  nations  and  among 
the  states,  but  that  it  should  take  a  two  thirds  vote  to  pass 
any  navigation  laws.  Give  us  that  protection  and  we  are 
safe.  Not  so,  said  the  North  ;  you  may  prevent  us  from  get- 
ting the  protection  we  need  against  foreign  severity  and  in- 
justice. The  question  of  the  importation  of  slaves  arose,  for 
that  was  involved  in  the  regulation  of  commerce,  and  the  lay- 
ing of  duties.  The  North  said  slaves  are  imports  and  should 
be  taxed  as  such.  That  will  produce  some  revenue,  and  will 
tend  to  restrict  the  slave-trade.  The  South  replied  that  the 
importation  of  slaves  did  not  amount  to  much,  and  they 
would  stop  it  themselves,  for  they  would  soon  have  all  the 
slaves  they  wanted.  The  North  pressed  the  tax  upon  slaves 
imported,  and  the  restriction  of  their  importation,  with  great 
firmness.  The  South  thought  that  it  had  better  concede 
something  on  the  subject  of  navigation  in  order  to  escape 
pressure  upon  the  slave  question.  And  so  another  compro- 
mise was  effected.  Congress  was  given  power  to  regulate 
commerce  with  foreign  powers  and  among  the  states ;  the 
two  thirds  vote  was  not  insisted  upon.  The  power  to  impose 
a  tax  of  ten  dollars  upon  every  slave  imported  was  conceded, 
and  a  provision  inserted  that  Congress  should  not  prohibit  the 
importation  of  slaves  prior  to  1808. 


THE  CONSTITUTION  COMPLETED.  81 

It  is  proper  to  say  that  in  1808  Congress  did  pass  a  law 
prohibiting  the  importation  of  slaves,  but  punishment  for  the 
violation  of  the  law  was  not  inflicted  until  the  administration 
of  Abraham  Lincoln.  No  tax,  however,  was  ever  imposed 
upon  any  slave  imported. 

No  property  qualification  was  required  of  any  officer  of  the 
United  States.  Full  faith  should  be  given  in  each  state  to 
the  public  acts,  records,  and  judicial  proceedings  of  another. 
Provision  was  made  for  the  surrender  of  criminals,  and  of 
fugitive  slaves.  Amendments  to  the  Constitution  were  pro- 
vided for,  but  no  amendment  should  depriye  any  state,  with- 
out its  consent,  of  its  equal  suffrage  in  the  Senate.  All  the 
necessary  details  were  perfected ;  the  several  provisions  care- 
fully expressed  in  plain  and  direct  phrases,  and  arranged  in 
suitable  order.  The  revisers  struck  out  the  word  "  national " 
from  the  Constitution,  lest  it  should  cause  the  opposition  or 
unnecessary  fear  of  the  too  jealous  champions  of  state- rights ; 
the  names  of  the  several  states  were  stricken  from  the  pream- 
ble, and  "  The  People  "  inserted  instead,  in  order  to  signify 
that  the  power  creating  the  Constitution  came  from  the  peo- 
ple, not  from  the  states,  and  because  all  the  states  named 
might  not  ratify  the  Constitution.  Provision  was  made  for 
the  ratification  of  the  Constitution,  not  by  Congress,  not  by 
the  legislatures  of  the  states,  but  by  the  conventions  of  at 
least  nine  states,  thus  again  signifying  the  people  as  the 
source  of  power. 

Finally,  on  the  17th  of  September,  178T,  the  Constitution 
was  completed.  It  was  not  satisfactory  to  all  the  delegates, 
and  several  refused  to  sign  it.  "  Done  in  convention  by  the 
unanimous  consent  of  the  states  present,"  is  the  language  of 
the  attestation  clause,  not  by  the  unanimous  consent  of  all 
the  states,  or  of  all  the  delegates.  It  was,  however,  signed 
by  the  large  majority.  President  Washington  was  author- 
ized to  transmit  it  to  the  Congress  of  the  United  States,  with 
the  recommendation  that  it  be  submitted  for  adoption  to  a 
convention  of  delegates,  chosen  by  the  people  in  every  state. 
A  letter  was  addressed  to  Congress,  from  which  the  following 
is  an  extract :  "In  all  our  deliberations  we  kept  steadily  in 
our  view  that  which  appears  to  us  the  greatest  interest  of 


82  CONSTITUTIONAL  HISTORY. 

every  true  American,  the  consolidation  of  our  Union.  .  .  . 
And  thus  the  Constitution  which  we  now  present  is  the 
result  of  a  spirit  of  amity,  and  of  that  mutual  deference  and 
concession  which  the  peculiarity  of  our  political  situation 
rendered  indispensable."  And  thereupon  the  convention 
adjourned,  leaving  the  Constitution  to  abide  its  fate  at  the 
hands  of  the  conventions  of  delegates  to  be  chosen  by  the 
people. 


LECTURE  IV. 

The  Ratification  of  the  Constitution.  —  Proceedings  in  the 
Conventions  of  the  Several  States. 

The  fate  of  the  proposed  Constitution  remained  doubtful 
for  many  months  after  the  adjournment  of  the  convention. 
Hamilton  said  it  would  be  arrogance  to  conjecture  the  result. 
Madison,  writing  to  Washington,  said :  "  The  majority  in  Vir- 
ginia will  be  very  small  on  whichever  side  it  may  be.  The 
business  is  in  the  most  ticklish  state  that  can  be  conjectured." 
Delaware  was  the  first  state  to  accept  it.  Gratified  by  the 
concession  of  equality  in  the  federal  Senate,  the  ratification 
was  prompt,  enthusiastic,  and  unanimous.  Pennsylvania  was 
the  second.  The  opposition  was  sharp,  but  Franklin  was 
president  of  the  state,  and  Wilson  a  delegate  to  the  state  con- 
vention. Their  influence  was  great.  Wilson  was  the  only 
delegate  to  the  state  convention  who  had  also  been  a  dele- 
gate to  the  Constitutional  Convention.  His  great  speeches  in 
favor  of  the  ratification  of  the  Constitution  are  still  quoted  as 
aids  to  its  exposition.  The  opposition  was  routed  by  bold 
and  energetic  measures,  and  the  ratification  was  effected  by  a 
vote  of  forty-six  to  twenty-three.  Then  New  Jersey  and 
Georgia  followed  unanimously.  Next  came  Connecticut  by  a 
vote  of  one  hundred  and  twenty-eight  to  forty. 

The  result  in  these  five  states  was  the  more  easily  obtained 
because  the  friends  of  the  Constitution  were  prompt  to  act.. 
With  delay  in  the  other  states  came  a  bitterness  of  conten- 
tion which  made  the  result  doubtful.  The  first  close  strug- 
gle was  in  Massachusetts.  The  public  creditor  favored  the 
proposed  Constitution.  He  saw  in  it  some  hope  of  his  long 
deferred  pay.  But  the  debtor  class  opposed  it ;  for  it  would 
put  an  end  to  cheap  paper  money,  with  which  they  hoped  to 
pay  their  debts,  when  it  became  still  cheaper. 

The  merchants,  manufacturers,  lawyers,  and  clergy,  and  the 


i 


84  CONSTITUTIONAL  HISTORY. 

officers  of  the  late  continental  army  favored  it.  Massachu- 
setts had  lately  been  the  theatre  of  Shays'  rebellion,  of  which 
mention  has  already  been  made.  The  insurgents  had  in- 
voked the  language  of  the  Declaration  of  Independence  to 
justify  their  uprising.  In  the  Constitutional  Convention  at 
Philadelphia  this  rebellion  afforded  frequent  illustration  of 
the  alleged  danger  of  giving  power  to  the  people.  The  sub- 
dued insurgents  were  opposed  to  the  new  Constitution,  and 
although  disfranchised  by  law,  twenty  of  them  were  chosen 
delegates  to  the  Massachusetts  convention,  and  took  their 
seats  unchallenged,  as  the  colleagues  of  John  Hancock,  Sam- 
uel Adams,  Fisher  Ames,  and  Rufus  King.  Hancock  and 
Adams  scarcely  favored  the  Constitution.  They  feared  that 
it  infringed  upon  the  rights  of  the  people,  and  especially 
upon  the  rights  of  the  states.  Hancock  was  long  governor 
of  the  state,  and  was  especially  tenacious  of  state  rights  and 
state  dignity.^ 

The  majority  of  the  Massachusetts  convention  was  clearly 
opposed  to  ratification.  The  discussion  was  1  uig  continued. 
Many  objections  were  urged.  The  proposed  Constitution  did 
not  say  that  the  powers  not  conferred  upon  the  United  States 
were  reserved  to  the  states.  It  did  not  provide  for  a  trial  by 
jury  in  civil  cases.  It  did  not  provide  that  a  person  must 
first  be  indicted  before  he  could  be  convicted  of  crime.  It 
recognized  slavery  and  the  slave-trade.  It  had  no  bill  of 
rights.  It  opened  the  door  to  Papists.  It  required  no  profes- 
sion of  religion  as  a  qualification  for  office.  Other  objections 
were  made.  For  a  time  it  was  supposed  they  would  be  fatal, 
but  Hancock  finally  came  forward  as  a  mediator.  He  pro- 
posed that  the  Constitution  be  ratified,  with  an  accompanying 
recommendation  that  it  be  amended  in  the  particulars  in 
which  it  was  thought  to  be  defective.  His  proposition  was 
adopted,  and  the  Constitution  was  ratified  by  a  vote  of  one 
hundred  and  eighty-seven  to  one  hundred  and  sixty-eight. 

1  Washington,  during  his  first  administration,  made  a  tour  into  the  Eastern 
States  and  visited  Boston.  Governor  Hancock  at  first  refused  to  call  upon  him. 
He  said  that  he  was  the  governor  of  an  independent  state,  and  Washington  only 
the  chief  of  a  confederation  of  states,  and  as  the  inferior  in  rank  the  President 
should  make  the  first  call.  However,  he  yielded  to  the  better  judgment  of  his 
friends,  and  finally  consented  to  do  Washington  the  honor  of  first  calling  upon 
him. 


RATIFICATION  IN  THE  STATES.  85 

I  Maryland  next  ratified  the  Constitution  with  much  una- 
nimity, notwithstanding  the  strenuous  opposition  of  Luther 
Martin.  Mr.  Martin,  it  will  be  remembered,  was  a  delegate 
to  the  federal  convention.  His  objections  are  preserved  in 
the  letter  which  he  sent  to  the  Maryland  legislature.  The 
letter  is  a  most  graphic  and  earnest  denunciation  of  the  main 
features  of  the  Constitution.  1  I  quote  its  closing  words  as 
the  interesting  evidence  of  the^  earnestness  of  his  convictions  : 
*'So  destructive  do  I  consider  the  proposed  system  to  the 
happiness  of  my  country,  that  I  would  cheerfully  sacrifice  that 
share  of  property  with  which  Heaven  has  blessed  a  life  of  in- 
dustry, I  would  reduce  myself  to  indigence  and  poverty  ;  and 
those  who  are  dearer  to  me  than  my  own  existence  I  would 
intrust  to  the  care  of  that  Providence  who  has  so  kindly  pro- 
tected myself,  if  on  those  terms  only  I  could  procure  my 
country  to  reject  these  chains  which  are  forged  for  it."  Mr. 
Martin  was  then  about  forty-two  years  of  age,  and  it  is 
pleasant  to  record  that  he  lived  under  the  new  Constitution 
about  forty  years  longer,  and  attained  fulness  of  honor  and 
distinction,  without  witnessing  the  calamities  he  foreboded. 

South  Carolina  followed  next,  and  ratified  the  Constitution 
by  a  majority  of  seventy-six,  but  recommended  amendments 
substantially  like  those  of  Massachusetts.  South  Carolina 
was  the  eighth  state  ;  and,  if  one  more  could  be  obtained,  the 
Constitution  would  take  effect  between  the  nine  ratifying 
states.  There  remained  the  five  states  of  Virginia,  New 
York,  New  Hampshire,  North  Carolina,  and  Rhode  Island. 
The  state  convention  of  Virginia  was  called  for  the  2d  of 
June,  17l8,  of  New  York  for  the  17th,  and  of  New  Hamp- 
shire for  the  18th  of  the  same  month.  The  result  was  ex- 
pected to  be  adverse  in  every  one  of  these  states. 

In  Virginia  the  opposition  was  led  by  Patrick  Henry.  He 
brought  to  the  work  his~wo!Td5tful  power  of  eloquence,  sar- 
casm, and  invective.  He  no  doubt  believed  that  the  proposed 
Constitution  would  lead  to  the  destruction  of  the  'states  and 
of  the  liberties  of  the  people.  He  was  a  natural  master  of 
oratory  and  eloquence.  His  speeches  had  place  in  our  earlier 
reading  books,  as  specimens  of  vehement  and  patriotic  ora- 
tory.    But  his  capacity  was  small  for  dispassionate  examina- 


86  CONSTITUTIONAL  HISTORY. 

tion  and  logical  argument.  He  was  a  lawyer.  Jefferson 
said  that  his  opinion  upon  a  legal  question  was  not  worth  a 
brass  cent.  Nevertheless  he  struck,  fair  and  true,  the  line 
that  separated  the  old  government  from  the  new.  He  said 
in  opening  the  debate:  "The  Constitution  is  a  severance  of 
the  confederacy.  Its  language,  '  We,  the  people,'  is  the  insti- 
tution of  one  great  consolidated  national  government  of  the 
people  of  all  the  states,  instead  of  a  government  by  compact, 
with  the  states  for  its  agents.  The  people  gave  the  conven- 
tion no  power  to  use  their  name." 

Henry  was  ably  seconded  by  Richard  Henry  Lee,  William 
Grayson,  and  George  Mason,  great  names  in  Virginia  in  those 
days,  and  still  deservedly  held  in  the  highest  estimation. 
James  Monroe  followed  their  lead.  James  Madison  and 
Governor  Randolph  were  the  leading  champions  of  the  ne^ 
Constitution.  Their  conspicuous  leadership  in  the* federal 
convention  will  be  recalled.  John  Marshall,  afterwards  chief 
justice,  came  to  their  assistance,  and  foreshadowed,  in  his  re- 
marks upon  the  judiciary  system,  the  great  power  it  was 
destined  to  wield,  under  his  direction,  in  keeping  both  nation 
and  states  true  to  their  appointed  functions.  The  debate 
lasted  a  month.  It  may  be  read  with  instruction,  as  it  is  re- 
ported in  the  volumes  of  Elliot.  The  ratification  prevailed 
by  a  majority  of  ten  in  a  vote  of  one  hundred  and  eighty-six. 
After  all,  the  influence  of  Washington  procured  the  result. 
Bancroft  calls  him  "  The  anchor  of  the  Constitution."  The 
ratification  was  absolute  and  unconditional ;  but  it  was  ac- 
companied by  the  solemn  declaration  that  the  people  had  the 
right  to  resume  the  powers  granted  to  the  United  States 
whensoever  the  same  should  be  perverted  to  their  injury  or 
oppression,  —  a  proposition  which  is  exceedingly  plausible 
but  very  dangerous ;  for  it  does  not  provide  any  disinterested 
judge  of  the  acts  which  may  be  alleged  to  be  a  perversion 
of  the  powers  granted. 

Meanwhile,  the  State  of  New  Hampshire  had  ratified  the 
Constitution,  but  the  fact  was  not  known  in  Virginia. 

Theopposition  to  jheConstitution  was^reat^iid^itter  in 
the  State  of  New  YorE  Fortuhate^the  convention  was 
held  80  lale-that-New  Ham^bire,  themnth  state,  had  rati- 


OPPOSITION  IN  NEW  YORK.  87 

fied  while  the  New  York  convention  was  engaged  in  its 
heated  discussions.  Two  thirds  of  the  delegates  were  elected 
to  oppose  it.  George  Clinton  was  governor  of  the  state  and 
a  member  of  the  state  convention.  He,  too,  was  a  strong 
state-rights  partisan,  and  an  opponent  of  the  new  scheme. 
His  official  influence  had  been  great  enough,  as  early  as  1783, 
to  induce  the  legislature  to  refuse  to  bestow  upon  Congress 
the  power  to  collect  revenues  through  its  own  officers.  After 
the  Bri]Eish~evacuated  the^itfoi  New  York  the  state  estab- 
lished  a  custom-house  l:here  for  the  sole  benefit  of  her  own 
treasury!  As  the  foreign  inportaJtIohsTor  New  Jersey,  Ver- 
mont^ and  a  part  of  Connecticut  came  through  this  port,  New 
York  could  really  tax  these  states.  SneVas  willing  to  pay 
the  federal  requisitions,  and  did  pay  them,  but  was  unwilling 
to  give  uplieflncome  from  imported  goods;  Practically,  New 
York  coTiM  dictate  the  commercial  policy  ol  the  country.  It^ 
was  this  claim  of  right  on  the  part  of  the  state  that  led  so 
manyoXher  states  to-<»n«ent  tavest  jthe_regulation  of  com- 
merce in  the  United  States.  Tfiwijit  finally  happened  that 
the  selfish  policy  of  Clinton,  and,  it  mayl)e  added,  of  Rhode 
IslanJ^stroyed  itself.  Two  of  theldelegates  to  the  federal 
convention  from  New^ork,  Robert  Yates  and  John  Lansing, 
withdrew  from  that  convention  when  the  vote  was  announced 
which  committed  the  convention  to  the  formation  of  a  new 
Constitution.  They  were  willing  that  the  Articles  of  Con- 
federation should  be  amended  according  to  the  New  Jersey 
plan,  presented  by  Mr.  Paterson ;  but  were  so  thoroughly 
opposed  to  a  consolidated  central  government,  acting  directly 
upon  the  people  and  not  through  the  states,  that,  in  obedi- 
ence to  what  they  supposed  to  be  the  sentiment  of  their  state, 
they  withdrew,  and  did  not  again  return.  They  justified 
their  action  in  a  letter  addressed  to  Governor  Clinton.  This 
letter  met  with  great  acceptance.  Mr.  Lansing  was  now  a 
delegate  to  the  state  convention,  and  a  strong  leader  of  the 
opposition  to  ratification. 

The  friends  of  the  Constitution  felt,  long  before  the  conven- 
tion assembled,  that  public  discussion  might  be  useful  in  over- 
coming th¥]5os^ile^ttitud£_of^  a  series 
of  essays  in  exposition  of  the  Constitution  was  written  by 


88  CONSTITUTIONAL  HISTORY. 

Hamilton,  Madison,  and  Jay,  over  the  common  signature  of 
"Publius.^^  These  essays  were  published  in  a  newspaper,  be- 
tween October,  1787,  and  June,  1788.  They  were  written 
for  immediate  effect  upon  a  topic  which  greatly  excited  the 
public.  One  would  naturally  suppose  that  they  would  not  be 
entirely  free  from  partisan  bias,  and  that,  after  the  issue  had 
been  decided,  they  would  share  the  usual  oblivion  of  fugitive 
publications.  But  they  were  destined  for  a  different  fate. 
They  were  subsequently  collected  and  published  in  a  volume 
styled  "  The_Federalist,^'  From  that  day  to  this,  "  The  Fed- 
eralist "  has  held  unequalled  rank  as  an  authority  upon  the 
construction  of  the  Constitution.  Chancellor  Kent,  one  of  the 
most  accomplished  of  American  jurists,  writing  fifty  years 
ago,  said :  "  I  know  not,  indeed,  of  any  work  on  the  princi- 
ples of  free  government  that  is  to  be  compared  in  instruction 
and  intrinsic  value  to  this  small  and  unpretending  volume,  not 
even  if  we  resort  to  Aristotle,  Machiavel,  Montesquieu,  Mil- 
ton, Locke,  or  Burke."  Mr.  Justice  Story  made  it  the  basis 
of  his  Commentaries.  The  fifty  years  that  have  elapsed  since 
Kent  and  Story  wrote,  years  full  of  intellectual  activity  and 
constitutional  discussion,  would  have  pushed  "  The  Federal- 
ist "  from  its  pedestal,  if  its  title  to  supremacy  had  not  been 
indefeasibly  grounded  in  merit ;  but  nearly  every  successive 
volume  of  the  United  States  Supreme  Court  reports  attests 
its  value  as  authority. 

Hamilton  was_a^delegate  to  the  New^Yorkuionvention.  So 
wererJubir  J^,  TThancellor  Livingston,  and  James  Duane,  all 
friends  of  the  new  Constitution.  But  Harnilton^  was  the  great 
leader  in  its  support.  We  have  a  pretty^  full  report  of  the 
debatesT^We  can_now  see  from  them  how  well  equipj)ed 
Hamilton  was  for  the  encounter.  It  was  a  part  of  his  policy 
to  prolong~"Ehe"'3ebate~~until  he  could  hear  from  Virginia  or 
New  Hampshire.  He  had  his  couriers  at  Richmond  and  Con- 
cord, ready  to  bring  him,  as  fast  as  fleet  horses  could  pass  over 
bad  roads,  the  decisive  news  from  the  convention  at  either 
place.  The  New  York  convention  sat  at  Poughkeepsie.  On 
the  24th  day  of  June,  Hamilton's  messenger  from  Concord 
roSejnto^Poughkeepsie,  bringingTE^^ews  that  JNewTIamp- 
shire,  three^ys  before',"t[ad  ratified  the  Constitution.     Now, 


NEW  YORK  CONVENTION.  89 

indeed,  the  situation  was  changed.  There  was  no  longer  a 
confederacy  ;  the  Union  was  already  formed.  There  was  no 
longer  a  choice  between  the  old  system  and  the  new;  the 
state  must  eitherjoin  the  new  system  or  stey^out  oTTt. 

New  York  was  not  favorably  situated  for  a  separate  nation. 
New  England  on  the  east,  and  New  Jersey  and  Pennsylvania 
on  the  south,  belonged  to  the  new  Union.  Canada  was  on 
the  north,  and  Great  Britain  still  held  the  frontier  posts  as  a 
surety  that  treaty  obligations  would  be  performed.  Delay, 
with  its  altered  circumstances,  finally  brought  to  Hamilton 
and  his  party  the  victory  that  had  been  denied  to  argument 
and  eloquence.  But  the  Anti-Federalists  were  reluctant  to 
yield,  and  the  debate  was^rolonged.  The^se  debates  afford 
instructive  commentaries  upon  the  Constitution.  I  venture  to 
condense  the  main  propositions  advanced  by  the  respective 
parties. 

We  do  not  oppose  a  Union ;  indeed,  we  desire  one,  said  the 
Anti-Federattsts  ;  we  have  on«  under  the  Articles  of  Confed- 
eration ;  "defective,  we  grant ;  not  in  its  principles,  but  some- 
what so  in  the  details  of  execution.  We  are  willing  to  amend 
these  so  as  to  allow  Congress  to  levy  and  collect  the  tax  to 
meet  its  requisitions,  if  the  state  should  not  voluntarily  pay 
them.  Why  ask  for  more  ?  Why  make  this  untried  experi- 
ment of  a  great  central  government,  acting  directly  upon  the 
people,  and  compelling  both  states  and  people  to  yield  obedi- 
ence to  laws  which  are  to  be,  in  the  execution  of  the  powers 
conferred,  the  supreme  law  of  the  land,  any  state  law  or  act 
to  the  contrary  notwithstanding  ?  Then,  when  there  are  any 
disputes  as  to  whether  the  nation  or  the  state  has  the  right  to 
act,  the  national,  not  the  state,  court  has  the  right  to  decide, 
and  our  fears  tell  us  how  that  decision  will  always  be  made. 
You  are  creating  a  great  central  power,  which,  if  it  desires  so 
to  encroach  upon  the  rights  of  the  states  as  practically  to  de- 
stroy them,  needs  only  to  declare  that  it  is  necessary  to  do  so 
in  order  to  carry  into  execution  the  powers  conferred  upon  it ; 
then,  if  its  court  decide  that  it  is  right,  the  destruction  is  com- 
plete, unless  we  can  take  up  arms  to  defend  ourselves ;  and 
we  cannot  defend  ourselves,  first,  because  the  United  States 
may  take  our  able-bodied  men  to  recruit  its  army  ;  and,  sec- 


90  CONSTITUTIONAL  HISTORY. 

ond,  because  it  has  an  unlimited  power  of  taxation  for  neces- 
sary purposes  ;  and  if  the  United  States  compel  payment  of 
the  taxes  which  it  may  decide  necessary  to  levy  upon  us,  we 
shall  have  nothing  left  for  state  purposes,  and  cannot  even 
support  our  troops,  if  we  have  the  men  left  from  whom  to  re- 
cruit them.  How  do  we  know  that  your  President  will  not 
make  himself  king  ?  In  the  United  Netherlands,  once  its 
chief  magistrates  were  elective,  now  they  are  hereditary.  The 
Venetians,  once  a  republic,  are  now  governed  by  an  aristoc- 
racy. History  furnishes  no  example  of  a  confederated  re- 
public coercing  the  states  composing  it  by  the  influence  of 
laws  operating  upon  the  individuals  of  those  states.  Your 
experiment  is  without  precedent  or  example.  It  is  false  in 
principle,  for  there  cannot  be  two  supreme  powers  over  one 
individual,  namely,  the  governments  of  the  state  and  of  the 
United  States.  No  man  can  obey  two  masters.  Your  country 
is  too  vast  in  extent  to  be  governed  by  one  power.  You  create 
a  national  legislature  who  may  vote  their  own  pay,  without 
limitation  ;  who  are  too  few  in  number  to  represent  the  peo- 
ple, —  New  York  having  only  six ;  and  who  are  in  nowise 
amenable  to  the  state  :  what  security  have  we  against  their 
combinations  against  our  liberties,  and  their  corruption  in 
squandering  the  contributions  they'extort  from  us  ?  Why 
give  the  South  increased  representation  because  of  the  slave  ? 
Do  you  wish  to  compel  us  to  sanction,  slavery  ?  Representa- 
tion implies  the  free  agency  of  the  persons  represented ;  the 
slave  cannot  be  represented,  because  he  is  not  a  free  agent ; 
and  it  is  false  in  principle  to  give  his  master  double  represen- 
tation, once  on  his  own  account,  and  then  again  upon  account 
of  his  wrong  to  another.  And  small  as  our  representation  is. 
Congress  may  reduce  it ;  for  the  provision  is,  the  representa- 
tives shall  not  exceed  one  for  every  thirty  thousand,  but  it 
does  not  say  that  it  may  not  take  twice,  or  many  times  thirty 
thousand  to  be  entitled  to  one.  We  prefer  more  than  six  ;  the 
more,  the  better  we  are  represented,  and  the  less  risk  of  cor- 
ruption. The  representatives  should  be  chosen  every  year, 
instead  of  every  two  years  ;  six  years  as  the  term  of  a  senator 
is  much  too  long ;  the  government  will  fall  into  the  hands  of 
the  few  and  the  great ;  it  is  not  a  government  of  the  people  ; 


NEW  YORK  CONVENTION.  91 

it  is  in  everything  too  far  removed  from  the  people,  and  must 
inevitably  become  a  government  of  oppression ;  not  perhaps 
immediately,  but  gradually,  by  construction,  and  by  amplifi- 
cation of  jurisdiction  and  power.     This  may  be  slow,  it  may 
be  almost  imperceptible ;  but  knowing  the  natural  tendency  \ 
of  human  nature  to  hold  power  when  once  gained,  and  to  ex- ) 
tend  it  when  its  gratifications  have   been   experienced,  we/ 
plainly  see  that  the  states  are  to  fall  beneath  the  United 
States,  and  the  people  will  be  crushed  beneath  a  governments 
too  remote  to  hear  their  voice,  and  too  well  assured  of  its  own\ 
power  and  permanency  to  heed  it.     True,  the  Constitution  1 
assumes  to  guarantee  to  every  state  a  republican  form  of  i 
government ;  alas,  for  the  substance,  when  the  form  only  re- / 
mains ! 

Governor  Clinton,  speaking  for  the  party  of  which  he  was 
the  acknowledged  leader,  in  substance  said :  I  desire  a  fed- 
eral republic,  in  which  the  states  shall  form  the  creative 
principle.  Every  state  must  be  equal  and  equally  represented ; 
its  representatives  must  look  solely  to  it  for  their  support,  and 
for  their  instructions ;  they  must  collectively  vote  in  obedience 
to  its  will,  and  be  separately  subject  to  its  recall.  State  sov- 
ereignty is  the  shield  against  the  encroachments  of  national 
power. 

Hamilton  and  his  associates  replied  :  The  radical  vice  in 
the  Articles  of  Confederation  is  that  the  laws  of  the  Union 
apply  to  the  states  only  in  their  corporate  capacity.  Our 
misfortunes  proceed  from  a  want  of  vigor  in  the  continental 
government.  New  York  and  Pennsylvania  are  the  only 
states  that  have  fully  complied  with  the  federal  requisitions. 
New  Hampshire,  which  has  not  suffered  from  the  war,  is 
totally  delinquent.  So  is  South  Carolina.  The  other  states 
have  only  partly  complied.  Suppose  we  amend  the  Articles 
as  proposed,  giving  the  nation  power  to  compel  the  state  to 
comply  with  the  requisitions.  That  may  mean  war  against 
a  hostile  state.  Do  you  mean  that  ?  If  the  state  refuse  to 
comply,  how  is  the  nation  to  proceed  against  such  a  hostile 
state  ?  If  you  confer  the  full  and  unlimited  powers  of  taxa- 
tion, and  also  control  of  the  army,  upon  Congress,  you  estab- 
lish a  despotism,  the  meaning  of  which  word  is,  all  power  in 


92  CONSTITUTIONAL   HISTORY. 

one  body.  You  are  afraid  to  trust  the  representatives  of  the 
people.  You  can  have  no  government  of  your  own  unless  you 
trust  somebody.  Some  confidence  in  our  fellows  is  the  basis 
of  human  society.  Unless  you  will  trust  your  kind,  you  are 
divided  by  anarchy,  and  are  become  the  spoil  of  the  strong- 
est. But  there  are  provided  all  reasonable  checks.  There  are 
three  departments  of  government,  each  a  check  upon  the 
other.  The  President  is  the  representative  of  the  people.  He 
can  veto  bad  laws.  So  the  two  houses  are  checks  upon  each 
other ;  and  these  failing,  there  sits  the  court,  appointed  for 
life,  removed  from  the  passion  of  the  partisan,  and  with  no 
inducement  but  to  do  justice.  You  elect  your  own  represen- 
tatives ;  these  will  be  in  positions  of  honor,  and  if  not  honor- 
ably filled,  you  will  send  others  in  their  place.  Besides,  the 
President  and  judges  may  be  impeached  for  wrong-doing. 
But  human  selfishness  and  ambition  also  are  your  safeguards. 
The  public  servant  is  under  the  eye  of  the  public,  a  public 
quick  to  see,  and  prompt  to  strike  dead  the  madness  of  tyranny 
and  corruption.  What  reasonable  precaution .  is  omitted  ? 
Your  country  is  too  large  to  admit  of  a  pure  democracy, 
wherein  all  the  people  assemble,  deliberate,  and  decide.  You 
must  from  necessity  be  represented,  and  better  so  ;  for  men 
may  be  incapable  of  public  affairs  and  yet  choose  one  of  their 
number  to  represent  them  who  is  capable.  And  so  a  repre- 
sentative government  is  the  best.  The  ancient  democracies, 
in  which  the  people  themselves  deliberated,  never  possessed 
one  feature  of  good  government.  Their  character  was  tyranny, 
their  figure  deformity.  Their  assemblies  were  mobs ;  the 
field  of  debate  was  the  theatre  of  enormity,  of  mad  ambition, 
of  bloodshed;  it  was  matter  of  chance  whether  the  people 
were  blindly  led  by  one  tyrant  or  another.  You  want  more 
representatives.  The  ratio  is  one  to  thirty  thousand ;  you 
want  it  one  to  twenty  thousand.  We  cannot  argue  with  your 
emotions,  but  may  not  one  man  understand  the  interests  of 
thirty  as  well  as  of  twenty  ?  Remember  that  he  will  not  rep- 
resent all  your  interests,  but  only  those  of  federal  concern. 
These  are  principally  commerce  and  taxation.  Are  these 
questions  generally  understood  by  many,  or  by  few?  The 
people  may  choose  whom  they  please,  and  we  hope  they  will 


NEW  YORK  CONVENTION.  93 

choose  their  best.  Suppose  they  choose  the  bad  ;  they  must 
conform  to  the  scheme  of  the  Constitution,  and  if  that  is  wise 
and  good,  we  may  yet  enjoy  good  government  from  bad  men. 
Bad  grain  does  not  grow  from  good  seed,  though  the  wicked 
sow  it.  We  hope  that  the  popular  elections  will  be  pure,  and 
unbounded  liberty  of  choice  allowed.  Public  opinion  will  be 
a  great  element  of  safety.  Your  state  governments  will,  by 
their  watchfulness  and  jealousy  of  federal  encroachment,  be  a 
check  upon  it.  The  national  and  the  state  governments  have 
their  respective  spheres ;  each  will  hold  the  other  to  its  place, 
and  the  two,  thus  related,  form  a  double  security  to  the  people. 
Surely,  if  you  can  appeal  to  the  nation  against  the  injustice 
of  your  state ;  if  you  can  ask  your  state  to  interpose  against 
the  injustice  of  the  nation,  you  will,  indeed,  be  fortunate. 
We  predict  that  the  national  government  will  be  as  natural 
a  guardian  of  our  freedom  as  the  states  themselves.  But  how 
open  to  corruption  is  the  confederate  Congress !  Each  state 
has  one  vote ;  nine  states  must  concur  in  the  most  important 
measures.  Suppose  nine  states  present,  and  a  foreign  enemy 
bribes  the  two  delegates  who  represent  one  state.  The  other 
eight  are  instantly  paralyzed,  and  the  measure  thwarted  which 
may  be  essential  to  your  national  existence.  What  a  differ- 
ence between  the  old  and  the  new !  The  old  was  made  of 
rotten  materials  put  together  in  haste.  The  new  government 
will  not  encroach  upon  the  just  powers  of  the  state.  Does  it 
remodel  the  internal  police  of  any  state  ?  No.  Does  it  alter 
or  abrogate  any  of  its  civil  or  criminal  institutions?  No. 
Any  of  its  forms  or  safeguards  of  justice?  No.  Does  it 
affect  the  domestic  or  private  life  of  any  citizen  ?  No.  Does 
it  ask  the  state  to  surrender  any  power  or  function  essential 
to  its  welfare  ?  No.  The  declared  object  of  the  new  govern- 
ment is  to  insure  domestic  tranquillity,  provide  for  the  com- 
mon defence,  and  promote  the  general  welfare.  How  is  it  to 
be  done  ?  Not  in  the  least  by  taking  away  any  of  the  safe- 
guards or  means  by  which  every  state  may  now  compass  these 
blessed  objects,  but  by  strengthening  those  safeguards  and 
means  by  the  added  power  of  all  the  other  states ;  not  sepa- 
rately, either,  in  their  capacity  as  states,  but  by  the  union  of 
all  the  people  who  dwell  therein.     The  allotment  of  represen- 


\ 


I 


94  CONSTITUTIONAL  HISTORY. 

tatives  in  proportion  to  the  population,  the  inclusion  of  three 
fifths  of  the  slaves  in  ascertaining  the  people  to  be  represented, 
the  exemption  of  exports  from  taxation,  the  non-interference 
with  the  importation  of  slaves  until  1808,  the  imposition  of 
a  tax  upon  slaves  imported,  were  matters  of  accommodation, 
agreed  to  in  order  to  secure  the  assent  of  the  states  more 
especially  benefited  by  these  provisions.  You  may,  indeed, 
discuss  them  upon  their  merits,  and  possibly  condemn  them  ; 
but  the  states  which  insisted  upon  them  as  important  are  not 
here  to  persuade  or  reply  to  you  :  unless  you  respect  the  ac- 
commodation, it  is  in  vain  to  remind  you  that  to  some  of  the 
states  equality  in  the  Senate  and  power  in  Congress  to  regu- 
late commerce,  to  make  navigation  laws,  to  impose  taxes  upon 
imports,  to  exercise  any  power  with  respect  to  the  slave,  were 
conceded  in  the  same  spirit  of  compromise.  It  is  easier  to 
calculate  the  evils  than  the  advantages  of  a  measure,  and  we 
can  only  deprecate  that  appeal  to  the  passions  which  creates 
a  prejudice  fatal  to  deliberate  examination.  We  have  sought 
to  equalize  the  power  of  the  states ;  to  balance  the  depart- 
ments of  the  government ;  to  lodge  the  sword  in  one  depart- 
ment and  the  purse  in  another ;  to  connect  the  virtue  of  the 
rulers  with  their  interests  ;  to  make  the  Union  dependent  upon 
the  states  for  its  executive  and  senate  ;  to  make  the  states  in- 
dependent of  the  Union,  except  in  those  matters  of  highest 
concern  to  the  safety,  protection,  and  benefit  of  all.  We 
thought  it  right  that  the  Union,  in  the  exercise  of  these  pow- 
ers of  high  concern,  should  not  be  impeded  or  trammelled  by 
the  interposition  of  the  state.  Such  powers  may  not  be  efl&- 
ciently  used  when  most  urgently  needed,  unless  they  are  com- 
pletely and  supremely  held.  The  members  of  the  Union  will 
be  stronger  than  the  head  ;  the  number  of  their  powers  will 
always  be  greater.  The  Union  can  only  exercise  such  powers 
as  are  conferred ;  the  state  can  always  exercise  all  that  are 
not  given  to  the  Union. 

Such  is  a  skeleton  of  the  principal  points  urged  upon  the 
one  side  and  the  other  in  the  great  debate. 

After  the  news  from  New  Hampshire,  some  of  the  Anti- 
Federalists  .manifested  a  disposition  to  ratify  the  Constitution, 
upon  condition^at  a  convention  of  the  states  be  called  to 


FINAL  RATIFICATION.  95 

adopt  amendments,  which  this  convention  should  propose. 
The  news  of  the  ratificatfoh  Iby  Virginia  followed  in  a  few 
days.  The  proposition  was  then  made  that  1^  e w^lTorlTshould 
ratify,  but  reserve  the  fi^TToJeced^Jmra-tl^  within 

a  certain  time,  if  dissal;isfied  with  the  experiment.  The  FedU^ 
"efalTsts  were  of  the  opinion  that  a  conditional  ratification  was 
no  ratification  at  all^^nd_Jn-this  view -they- were  confirmed 
by  theopinion_oi  Madison.  The  Federalists,  however,  jy  ere 
willingtounite  in  therecommendatlon  of  amendments ;  and 
tfieylmoved  that  the  mtificatron  be  made  in  .the_iiill,confi- 
^5nc6~1iiat"1bfae"amendments  proposed  by  this  state  should  be 
maturely  considered,  and  that  until  a  convention  be  called 
and  ^convened  for  pfOp^smg3"^^^^™^^^i  ^'^^  TfriitpiT^Statea 
would  not  exercise'certain  powers  within  the  state.  The  test 
vote^'was~upon^lhe  question,  whether  the  ratification  should 
be  upon  condition  that  the  proposed  amendments  be  made  to 
the  Constitution,  or  in  full  confidence  that  such  amendments 
would  be  made.  The  "  full  confidence  "  plan  prevailed  over 
the  conditional  plan^^y^  mafdrity  of  only  two,  in  ajyote  qf^ 
sixty,  andTtEereupbn  NewnTort  came  into  the  Union. 
'  While  this  question  was  pending,  Mr.  Gilbert  Livingston 
spoke  substantially  as  follows :  "  I  desire  to  explain  my  vote. 
The  great  and  final  question  is  about  to  be  taken.  I  have 
had  a  severe  struggle  between  duty  and  prejudice.  I  entered 
this  house  determined  to  insist  upon  amendments  to  the  Con- 
stitution, before  I  would  consent  to  support  it.  But  my 
present  conviction  impels  me  to  yield  the  point.  Not  that  I 
believe  the  Constitution  safe  unless  amended.  But  in  our 
present  situation  with  respect  to  sister  states,  the  wisest  thing 
to  do  is  to  vote  for  the  ratification,  in  full  confidence  that  the 
amendments  advised  by  us  will  be  adopted.  \  I  shall  so  vote, 
and  appeal  to  my  constituents  to  ratify  my  action.  I  shall 
not  cease  to  labor  to  procure  a  revision  of  the  Constitution." 

The  convention  recommended  a  great  number  of  amend- 
ments to  be  proposed,  and  then  the  convention  adjourned. 
There  were  rejoicings  and  celebrations  by  the  Federalists,  and 
not  a  little  expression  of  discomfiture  on  the  part  of  the  Anti- 
Federalists. 

North  Carolina  remained  out  of  the  Union  until  November, 


96  CONSTITUTIONAL  HISTORY. 

1789,  and  Rhode  Island  until  June,  1790.  Rhode  Island  was 
quickened  to  come  in  by  the  fact  that  Congress,  in  fixing  the 
duties  upon  imports,  treated  this  state  as  a  foreign  country. 
The  ratification  by  nine  states  having  been  certified  to  the 
Congress  of  the  Confederacy,  that  body  adopted  a  resolution 
fixing  the  first  Wednesday  of  March,  1789,  as  the  day  when 
the  new  government  should  go  into  operation.  As  the  day 
fell  on  the  4th  of  March,  that  date  became  fixed  for  the  be- 
ginning and  the  end  of  congressional  and  presidential  terms. 
The  Continental  Congress  itself  stopped  on  the  3d  day  of 
March,  1789.  Its  vitality  had  long  been  so  feeble  that  its 
final  dissolution  attracted  no  attention. 


LECTURE  V. 

Practical  Establishment  of  the  Government  under  the  Con- 
stitution.—  First  Measures.  —  Influence  of  Hamilton  and 
Jefferson.  —  The  Hamiltonian  Era  of  Liberal  Construction. 
—  Formation  of  Parties.  —  Decisive  Measures  of  the  Govern- 
ment. 

The  4th  of  March,  1789,  was  the  day  appointed  for  the 
new  government  to  go  into  operation.  The  city  of  New  York 
was  named  as  the  temporary  seat  of  government.  Her  citi- 
zens by  private  subscription  provided  the  means  to  furnish 
suitable  chambers  in  which  the  senators  and  representatives 
might  meet.  But  on  the  first  day  few  senators  and  represen- 
tatives appeared.  Those  who  did  come  were  not  a  little  an- 
noyed at  the  delay  of  the  others.  It  did  not  augur  well  for 
the  new  government.  Besides,  the  disparaging  pleasantry  of 
the  enemies  of  the  new  order  of  things  disturbed  their  com- 
posure. But  the  roads  and  weather  were  bad,  while  some  of 
the  elections  had  been  too  recent  to  admit  of  so  early  an  a.t- 
tendance  on  the  part  of  those  chosen.  After  waiting  a  week 
without  obtaining  a  quorum,  a  circular  was  issued  to  the  ab- 
sentees. This  circular  pointed  out  "  the  indispensable  neces- 
sity of  putting  the  government  into  immediate  operation." 
But  not  until  the  31st  day  of  March  did  a  quorum  of  repre- 
sentatives appear,  and  the  senators  delayed  until  the  6th  of 
April.  The  two  houses  then  assembled  and  counted  the  elec- 
toral vote.  It  was  found  that  George  Washington  had  all  the 
votes  cast,  and  John  Adams  had  half  of  them,  less  one.  Under 
the  Constitution,  as  it  then  was,  Washington  became  Presi- 
dent, and  Adams  Vice-President.  The  first  presidential  elec- 
tors were  chosen  by  the  people  in  five  states,  and  by  the  leg- 
islatures in  five  states.  The  friends  of  the  new  Constitution 
mainly  did  the  voting ;  those  opposed  remained  away  from  the 
polls.    The  State  of  New  York  did  not  participate  in  the  elec- 


98  CONSTITUTIONAL  HISTORY. 

tion  of  the  first  President,  nor  did  her  senators  sit  in  the  first 
session  of  the  first  Congress  until  July  19,  1789.  The  bitter- 
ness with  which  Governor  Clinton  regarded  the  unconditional 
ratification  of  the  Constitution,  and  his  determination  that 
there  should  be  another  federal  convention  to  propose  amend- 
ments to  it,  probably  account  for  the  attitude  of  the  state. 
But  Hamilton,  Madison,  and  the  other  leaders  decided  not  to 
incur  the  risks  of  another  convention. 

Richard  Henry  Lee  of  Virginia  declared  that  it  was  only 
common  fairness  to  wait  and  see  how  the  new  government 
would  work  ;  that  he  was  opposed  to  any  premature  amend- 
ments. As  he  had  been  a  vigorous  opponent  of  the  adoption 
of  the  Constitution,  his  position  had  great  weight ;  many 
others  took  the  same  ground ;  and  the  effort  to  convene  an- 
other federal  convention  failed. 

Washington  was  not  inaugurated  until  the  30th  day  of 
April.  After  the  electoral  vote  was  counted  a  messenger  had 
to  be  sent  to  Mount  Vernon.  Washington  had  been  making 
ready  to  go  to  New  York.  His  estate,  great  as  it  was  sup- 
posed to  be,  did  not  supply  him  with  suflBcient  ready  money. 
We  find  him  borrowing  six  hundred  pounds  of  his  friend, 
Captain  Conway,  to  enable  him  to  pay  some  of  his  debts,  and 
make  a  decent  figure  as  the  first  officer  of  the  nation.  Mean- 
time under  the  lead  of  Madison  the  House  of  Representatives 
began  the  work  of  making  the  necessary  laws  to  place  the  na- 
tion in  operation  and  enable  it  to  obtain  some  money. 

The  first  act  of  the  first  Congress  prescribed  the  oath  to  be 
administered  to  the  officers  of  the  government.  This  oath  re- 
quires them  to  support  the  Constitution  of  the  United  States, 
u  fl  unlike  the  constitutional  oath  required  of  the  President,  to 
V  »^!/j )-^  "preserve,  protect,  and  defend  the  Constitution."  The  sec- 
ond act  was  to  impose  duties  upon  certain  imports.  Its  pre- 
amble recited  its  purpose  "  to  be  for  the  support  of  the  gov- 
jN*^/  ernment,  for  the  discharge  of  the  debts  of  the  United  States, 

and  the  encouragement  and  protection  of  manufactures."  In 
after  times  and  down  to  the  present  day,  when  the  constitu- 
tional right  to  levy  duties  for  the  purpose  of  protection  of 
manufactures  has  been  challenged,  one  answer  has  been,  to 
point  to  this  preamble  and  say,  ''  Thus  our  fathers  understood 


ACTS   OF  THE   FIRST   CONGRESS.  89 

it."  On  the  other  hand  it  is  urged,  and  I  think  justly,  that 
the  debates  show  that  the  main  purpose  was  to  obtain  revenue  ; 
but  protection  was  considered,  and  duties  were  adjusted  to  af- 
ford it.  Mr.  Madison  said  that  the  states,  ripe  for  manufac- 
tures, ought  to  have  their  particular  interests  attended  to. 
One  object  in  adjusting  duties  to  afford  protection,  as  well  as 
to  obtain  revenue,  was  to  reconcile  the  states  to  the  new  rev- 
enue system  by  the  promise  of  the  advantage  which  protection 
held  out  to  them  ;  and  it  was  also  believed  to  be  good  policy 
to  develop  every  resource  of  the  country  essential  to  its  own 
support,  to  the  end  that  it  need  not  be  dependent  for  supplies 
upon  any  foreign  market. 

This  Congress  provided  for  the  organization  of  courts ; 
created  the  departments  of  State,  War,  and  Finance ;  pre- 
scribed their  respective  functions  ;  and  provided  a  postal  sys- 
tem. There  were  only  seventy-five  post-offices  then  in  the 
country.  An  aggregate  of  $659,000  was  appropriated  for  the 
expenses  of  the  government,  not  including  any  provision  for 
the  public  debt.  This  proved  to  be  sufficient  for  the  expenses 
of  the  first  year.  Since  1862  the  daily  income  of  the  govern-  \ 
ment  has  averaged  a  greater  sum. 

This  Congress  confirmed  the  confederate  Ordinance  of  1787 
for  the  government  of  the  territory  northwest  of  the  Ohio ; 
passed  navigation  laws;  regulated  the  coasting  trade;  pro- 
vided for  light-houses  ;  for  the  sale  of  public  lands  ;  the  gov- 
ernment of  the  territories  ;  for  the  naturalization  of  aliens ; 
proclaimed  a  policy  respecting  the  admission  of  new  states, 
and  fixed  the  salaries  of  public  officers.  In  short,  it  passed 
the  laws  necessary  to  start  the  new  government.  Plainly,  it 
labored  for  the  public  good,  with  singleness  of  purpose. 

In  creating  the  Department  of  State,  the  question  arose 
whether  the  officer  to  be  appointed  by  and  with  the  advice  of 
the  Senate  might  be  constitutionally  removed  by  the  Presi- 
dent. The  bill  contained  the  words,  "  to  be  removable  from 
office  by  the  President."  The  Constitution  is  silent  upon  the 
subject  of  removal,  except  by  impeachment.  It  provides  that 
judges  shall  hold  their  offices  during  good  behavior,  but  is 
silent  as  to  the  terms  of  the  other  appointees  of  the  Presi- 
dent.  It  was  argued  that  the  power  to  appoint  "  by  and  with 

IJNlVEKSITt  . 


100  CONSTITUTIONAL  HISTORY. 

the  advice  and  consent  of  the  Senate  "  implied  the  like  ad- 
vice and  consent  for  the  removal.  But  it  was  seen  that  the 
power  to  vote  a  man  in  is  distinct  from  the  power  to  vote 
him  out,  after  he  is  in.  The  House  of  Representatives  agreed 
that,  since  the  executive  power  was  vested  in  the  President, 
the  power  of  removal  was  incident  to  the  office  of  President ; 
and  if  that  were  not  so,  then  by  law  the  President  ought  to 
have  the  power  to  remove  an  unfit  executive  officer,  and  that 
the  Constitution  authorized  Congress  to  confer  this  power. 
The  Senate,  more  jealous  of  its  powers,  divided  evenly  upon 
the  question,  and  the  casting  vote  of  the  Vice-President  se- 
cured the  power  of  removal  to  the  President.  In  the  presi- 
dency of  Andrew  Johnson,  Congress  reversed  this  early  con- 
struction. The  rule  prescribed  by  Congress  in  Grant's  ad- 
ministration was  that  officers  appointed  by  the  President 
could  only  be  removed  by  the  like  advice  and  consent ;  but 
the  President  might  suspend  them,  and  the  suspension  would 
be  effective  only  until  the  end  of  the  next  session  of  the 
Senate,  unless  meantime  the  Senate  should  consent  to  the  re- 
moval. Congress  repealed  the  Tenure  of  Office  Act  in  1887, 
and  thus  readopted  the  early  construction. 

The  Constitution  provides  that  officers  of  the  United  States 
shall  be  established  by  law.  These  officers,  except  the  few  whose 
appointments  are  otherwise  provided  for  by  the  Constitution, 
must  be  appointed  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate.  It  was  not  necessary  that  the 
Constitution  should  provide  for  their  removal,  since  the  power 
to  establish  by  law  implies,  as  the  necessary  incident  of  that 
establishment,  the  power  to  declare  what  the  office  is,  and  the 
tenure  upon  which  it  shall  be  held,  whether  for  a  term  of 
years,  during  good  behavior,  or  the  pleasure  of  the  President. 
The  claim  that  the  removal  cannot  constitutionally  be  made 
except  with  the  consent  of  the  Senate  is  probably  untenable, 
although  it  is  competent  for  Congress  so  to  declare  by  law.^ 

Madison  prepared  and  Congress  proposed  twelve  amend- 
ments to  the  Constitution  for  adoption  by  the  states.  These 
amendments  were  framed  the  more  clearly  to  express  the 
limits  set  to  the  powers  of  the  general  government.     The 

1  Ex  parte  Hennen,  13  Peters,  237  ;  Blake  v.  United  States,  103  U-  S.  227. 


AMENDMENTS  TO  THE   CONSTITUTION.  101 

Constitution  as  first  adopted  conferred  certain  powers  upon 
the  government.  The  argument  was  urged,  and  was  probably 
sound,  that  powers  not  conferred  did  not  exist  in  the  general 
government,  and  could  not  be  used.  But  it  was  wise,  in  view 
of  the  widely  expressed  apprehension  that  this  might  not 
prove  true,  to  state  it  expressly.  The  states  adopted  ten  of 
the  twelve  amendments,  and  rejected  two.  Eight  of  these 
amendments  protect  the  citizens  from  the  oppression  of  the 
United  States,  and  the  ninth  and  tenth  express  the  non-ex- 
istence in  the  United  States  of  undelegated  power.  The  ninth 
is,  "The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retained  by 
the  people." 

The  tenth  is,  "  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  states, 
are  reserved  to  the  states  respectively,  or  to  the  people."  It 
is  a  striking  evidence  of  the  approval  of  the  general  scheme 
of  the  Constitution  by  those  who  most  opposed  its  adoption 
that,  in  the  great  mass  of  amendments  proposed  by  the  several 
state  conventions,  no  fundamental  change  in  the  system  was 
suggested.  The  twelve  amendments  proposed  were  sneered 
at  by  a  member  of  Congress,  as  of  "  no  more  value  than  a 
pinch  of  snuff,  since  they  went  to  secure  rights  never  in  dan- 
ger." Another  member  characterized  them  as  "  whipped 
syllabub,  frothy  and  full  of  wind,  formed  only  to  please  the 
palate ;  or,  like  a  tub  thrown  out  to  a  whale,  to  secure  the 
freight  of  the  ship  and  its  peaceful  voyage." 

These  ten  amendments  were  originally  limitations  of  the 
federal  power,  and  not  in  any  sense  limitations  of  the  powers 
of  the  states.  The  reason  why  they  were  thought  to  be  un- 
necessary by  the  framers  of  the  Constitution  was  that  the 
United  States  was  created  to  exercise  delegated  powers,  and 
hence  could  have  no  powers  not  delegated.  In  other  words, 
it  was  the  agent  of  the  people  and  of  the  states,  and  like 
every  other  agent  could  not  have  or  exercise  any  power  ex- 
cept such  as  was  given  by  the  principal.  But  as  an  agent 
will  sometimes  assume  more  power  than  is  actually  given  him, 
it  was  felt  that  the  United  States  would  be  peculiarly  tempted 
to  such  assumption,  and  therefore  it  was  prudent  to  recite  in 


102  CONSTITUTIONAL  HISTORY. 

its  letter  of  agency  that  it  did  not  have  certain  powers,  and 
none  at  all  beyond  what  were  written.  Experience  has  shown 
that  the  amendments  were  needed. 

Since  the  late  civil  war  three  amendments  have  been 
adopted. 

These  amendments  had  for  their  object  the  denial  to  the 
state  of  the  power  to  do  injustice  to  the  citizen,  and  the  au- 
thorization of  the  United  States  to  secure  to  him  justice  and 
equality,  independently  of  the  state.  Though  it  has  been  re- 
peatedly held  by  the  Supreme  Court  that  the  first  ten  amend- 
ments were  limitations  upon  the  federal  and  not  upon  the 
state  power,  yet  since  the  Fourteenth  Amendment  now  pro- 
vides that  "  no  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,"  and  since  the  rights  conferred  upon  the  citi- 
zen by  the  ten  amendments  are  conferred  upon  him  in  his 
capacity  as  citizen  of  the  United  States,  it  is  probable  that 
these  rights  cannot  now  be  abridged  or  denied  to  him  by  any 
state. 

Thus  after  an  experience  of  three  quarters  of  a  century,  it 
was  felt  that  human  rights  and  liberties  were  safer  with  a 
national  guarantee  than  when  exposed  to  the  resentment  of  a 
state,  or  protected  only  by  its  sense  of  justice.  It  is  proper, 
however,  to  state  that  the  Supreme  Court,  as  will  be  shown 
hereafter,  has  construed  several  of  the  first  ten  amendments 
as  merely  forbidding  the  United  States  to  infringe  upon  the 
rights  expressed,  and  not  at  all  as  a  bestowal  of  such  rights. 

It  was  fortunate  for  the  new  government  that  its  early  de- 
velopment was  intrusted  to  the  hands  of  friends.  It  was  ex- 
tremely fortunate  that  so  good  a  man,  and  one  who  com- 
manded such  universal  confidence  as  Washington,  was  the 
first  President.  It  was  fortunate  that  James  Madison  was  in 
the  first  Congress.  His  practical  wisdom  in  the  preparation 
and  advocacy  of  the  wise  and  necessary  laws  enacted  by  that 
Congress  confirms  the  title  which  his  labors  in  the  Constitu- 
tional Convention  justly  gave  him,  to  be  regarded  as  the  first 
among  the  foremost  of  the  founders  of  our  constitutional  gov- 
ernment. 

Washington   appointed  Alexander  Hamilton  Secretary  of 


HAMILTON  AND  JEFFERSON.  103 

the  Treasury,  and  Thomas  Jefferson  Secretary  of  State.  Jef- 
ferson was  then  abroad  in  France,  and  did  not  return  home 
until  the  following  year.  I  shall  speak  frequently  of  these 
men.  They,  more  than  any  other  two  men,  moulded  the  des- 
tiny of  the  republic.  Hamilton  stamped  his  impress  upon  the 
organization  of  the  government ;  Jefferson  upon  the  great 
party  that  was  so  long  to  control  it.  With  perhaps  some 
slight  exaggeration  of  speech,  it  may  be  said  of  Hamilton  and 
Jefferson  that  the  former,  during  the  twelve  years  of  federal 
control,  embracing  the  administrations  of  Washington  and 
John  Adams,  caused  the  national  edifice  to  be  constructed  ac- 
cording to  the  constitutional  plans  and  specifications  ;  that 
then  the  latter  entered  into  possession,  and  he  and  his  polit- 
ical family  after  him,  for  sixty  years,  kept  the  edifice,  with 
few  changes  and  slight  repairs. 

Hamilton  believed  in  the  necessity  of  a  vigorous  national 
system,  organization,  power,  and  order.  The  government 
should  be  so  strong  that  disobedience  would  not  enter  th^ 
minds  of  the. people.  Jefferson  feared  such  a  government  as 
he  would  fear  a  tyrant.  He  would  rather  risk  the  anarchy  of 
weakness  than  the  tyranny  of  strength.  Instead  of  control- 
ling the  people,  it  was  better  to  persuade  them  to  do  right 
and  then  trust  them  to  do  it. 

In  the  end  the  country  had  the  benefit  of  both  their  sys- 
tems. Granted  that  it  had  Hamilton's  first,  it  could  risk 
Jefferson's  afterwards.  The  country  did  secure  the  benefit  of 
Hamilton's  system  of  organization,  and  then  of  Jefferson's 
system  of  individual  freedom.  Our  great  national  organiza- 
tion, extending  from  ocean  to  ocean,  complete  in  its  detail, 
but  all  springing  from  the  official  centre  at  Washington,  is  the 
development  of  Hamilton's  ideal.  Jefferson's  theory  of  indi- 
vidual freedom  and  equality  seems  to  have  found  its  full 
realization  in  the  three  amendments  which  our  own  genera- 
tion has  seen  added  to  the  national  Constitution.  Posterity 
has  used  the  methods  of  Hamilton  to  mould  the  theories  of 
Jefferson  into  constitutional  form. 

Hamilton  was  then  only  thirty-two  years  of  age,  but  Con- 
gress turned  to  him  as  the  actual,  as  well  as  the  official,  mas- 
ter of  the  great  problems  of  finance.     He  was  competent  to 


104  CONSTITUTIONAL  HISTORY. 

deal  with  them.  The  old  confederacy  had  been  a  pauper, 
passing  its  empty  hat  around  among  the  states,  and  receiving 
instead  of  the  money  it  needed  the  contempt  usually  ac- 
corded to  importunate  indigency.  The  new  Constitution  gave 
to  the  new  government  the  right  to  levy  and  collect  the 
money  it  needed.  Hamilton  determined  that  it  should  not 
only  have  money  in  its  purse,  but  that  its  resources  of  wealth 
and  credit  should  be  vastly  greater  than  those  of  any  state. 
In  an  exhaustive  report  to  Congress,  at  the  beginning  of  its 
second  session,  he  unfolded  these  resources.  He  explained 
how  the  revenue  should  be  raised,  collected,  and  managed.  He 
furnished  estimates  of  income  and  expenditure,  plans  for  the 
postal  service,  the  sale  of  public  lands,  the  regulation  of  the 
currency,  commerce,  and  navigation,  the  management  of  the 
treasury,  and  the  system  of  keeping  its  accounts. 

The  system  of  Hamilton  has  been  substantially  the  system 
/  of  the  nation  ever  since.  He  was  right  in  his  estimate  of 
I  the  value  of  money  to  the  nation,  and  of  the  power  of  the 
nation  to  obtain  it.  "  He  smote,"  says  Webster,  "  the  rock 
of  the  national  resources,  and  copious  streams  of  wealth 
poured  forth.  He  touched  the  dead  corpse  of  public  credit, 
and  it  stood  erect  with  life."  A  few  of  Hamilton's  concise 
sentences  will  show  what  results  he  expected  to  flow  from  a 
wise  financial  policy :  >^To  justify  or  preserve  the  confidence 
of  the  most  enlightened  friends  of  good  government ;  to  pro- 
mote the  respectability  of  the  American  name  ;  to  answer  the 
calls  of  justice ;  to  restore  landed  property  to  its  due  value ; 
to  furnish  new  resources  both  to  agriculture  and  commerce ; 
to  cement  more  closely  the  union  of  the  states  ;  to  add  to 
their  security  against  foreign  attack ;  to  establish  public 
order  on  the  basis  of  an  upright  and  liberal  policy,  —  these 
are  the  great  and  invaluable  ends  to  be  secured  by  a  proper 
and  adequate  provision,  at  the  present  period,  for  the  support 
of  the  public  credit.". 

While  it  was  for  Hamilton  to  propose  these  measures,  it 
was  for  Congress  to  adopt,  reject,  or  modify  them.     In  the  i 
consideration  of  the  financial  measures  of  Hamilton,  differ-  ] 
ences  arose  which  began  to  mark  the  lines  of  division  between 
the  Federal  and  the  Anti-Federal  parties.     Hitherto  the  divi-    ^ 


HAMILTON'S  FINANCIAL  MEASURES.  105 

sion  had  b^en  between  those  favoring  and  opposing  the  adop- 
tion of  the  new  Constitution.  Among  Hamilton's  measures 
was  a  scheme  for  funding,  and  ultimately  paying,  the  debts 
which  haTToeen  incurred  both  by  the  United  States  and  by 
the  states  in  prosecuting  the  war.  Hamilton  advised  that 
the  United  States  should  assume  all  these  debts.  There  was 
not  much  opposition  to  his  plan  with  respect  to  the  national 
debt,  though  many  thought  that  the  portion  of  it  held  by  our 
own  citizens  should  be  paid  only  to  the  extent  of  its  market 
value.  The  sixth  article  of  the  Constitution  provides  that 
"  all  debts  contracted  before  the  adoption  of  the  Constitution 
shall  be  as  valid  against  the  United  States  under  the  Consti- 
tution as  under  the  confederacy."  The  aggregate  seemed 
enormous  in  that  early  day.  Hamilton  estimated  that  the 
foreign  debt  of  the  Union  had  reached  the  sum  of  $11,710,- 
378;  the  domestic  debt  $42,414,085;  the  state  debts,  in- 
curred in  the  common  cause,  $25,000,000.  The  national 
debts,  held  in  part  at  home  and  in  part  abroad,  though  greatly 
depreciated,  and  not  "  worth  a  continental,"  as  the  phrase  was, 
it  was  one  of  the  great  objects  of  the  new  Constitution  to  pro- 
vide means  for  paying.  But  there  was  no  such  constitutional 
provision  respecting  the  state  debts  ;  and  why,  it  was  asked, 
should  the  United  States,  struggling  under  its  own  acknowl- 
edged obligations,  voluntarily  assume  this  added  burden  ?  Of 
these  debts,  some  states  had  discharged  more  than  others. 
Madison  complained,  not  without  reason,  of  the  injustice  of 
compelling  those  states  which  had  borne  their  own  burdens 
unaided  to  share  in  the  obligations  which  the  delinquent 
states  had  neglected.  Massachusetts  and  South  Carolina  had 
contracted  the  largest  state  debts,  —  about  $4,000,000  each. 
North  Carolina,  Pennsylvania,  Connecticut,  Massachusetts, 
and  South  Carolina  had  contracted  more  than  half  of  the  whole 
state  debts.  The  country  was  startled  and  cupidity  aroused. 
Powerful  combinations  were  formed  in  favor  of  the  assump- 
tion of  the  state  debts,  yet  none  could  be  formed  strong 
enough  to  carry  the  measure  upon  its  merits.  I  shall  pres- 
ently let  Jefferson  tell  how  it  came  to  be  carried  in  the  next 
Congress  in  connection  with  the  bill  locating  the  federal  cap- 
ital on  the  Potomac. 


106  CONSTITUTIONAL  HISTORY. 

Hamilton  and  his  friends,  however,  it  was  said,  were  anx- 
ious to  carry  the  measure,  not  so  much  in  the  interests  of  pub- 
lic justice,  as  for  the  purpose  of  securing  to  the  new  govern- 
ment the  support  of  this  large  body  of  creditors.  It  was 
readily  seen  that  if  the  new  government,  with  ample  re- 
sources and  credit,  should  assume  to  pay  these  debts,  so  long 
delayed  and  depreciated  by  the  states,  the  power  and  prestige 
of  wealth  would  pass  to  its  side.  The  new  obligations  would 
form  a  circulating  medium  greatly  needed  by  the  impover- 
ished country. 

Pending  the  consideration  of  the  assumption  of  the  state 
debts,  the  location  of  the  new  capital  came  up  for  considera- 
tion. The  North  wanted  it  on  the  Delaware  or  Susquehanna ; 
the  South  on  the  Potomac.  Meantime  Washington  had  ap- 
pointed Thomas  Jefferson  Secretary  of  State.  He  had  been 
abroad  as  minister  to  France.  The  breaking  out  of  the 
French  Revolution  detained  him,  and  he  did  not  enter  upon 
his  duties  as  secretary  until  March,  1790.  By  that  time 
Hamilton's  measures  with  respect  to  the  continental  debt  had 
been  adopted,  but  the  assumption  bill  was  pending.  Jefferson 
himself  wrote  a  graphic  account  of  the  manner  in  which  the 
capital  and  assumption  bills  came  to  be  passed.     I  quote  :  — 

"  The  bill  to  assume  the  state  debts  was  Jost  at  first  by  a 
few  votes ;  the  bill  to  locate  the  capital  on  the  Potomac  was 
also  lost  by  about  the  same  number  of  votes.  The  Eastern 
and  Middle  States  were  for  the  assumption ;  the  Southern 
States  against  it.  The  Southern  States  wanted  the  capital  on 
the  Potomac ;  the  other  states  on  the  Susquehanna.  Both 
sections  were  greatly  vexed  at  losing  their  favorite  measure. 
At  the  last,  the  two  measures  were  combined. 

"  The  assumption  bill  produced  the  most  bitter  and  angry 
contest  ever  known  in  Congress,  before  or  since  the  union  of 
the  states.  I  arrived  in  the  midst  of  it,^but  a  stranger  to  the 
ground,  a  stranger  to  the  actors  in  it,  so  long  absent  as  to 
have  lost  all  familiarity  with  it,  and  as  yet  unaware  of  its 
object.  I  took  no  concern  in  it.  The  great  and  trying  ques- 
tion, however,  was  lost  in  the  House  of  Representatives.  So 
high  were  the  feuds  excited  on  this  subject  that  on  its  rejec- 
tion business  was  suspended.     Congress  met  and  adjourned 


EARLY  LOG-ROLLING.  107 

from  day  to  day  without  doing  anything,  the  parties  being 
too  much  out  of  temper  to  do  business  together.  The  east- 
ern members  threatened  secession  and  dissolution.  Hamilton 
was  in  despair.  As  I  was  going  to  the  President's  one  day,  I 
met  him  in  the  street.  He  walked  me  backwards  and  for- 
wards before  the  President's  door  for  half  an  hour.  He 
painted  pathetically  the  temper  into  which  the  legislature 
had  been  wrought ;  the  disgust  of  those  who  were  called  the 
creditor  states  ;  the  danger  of  secession  of  their  members, 
and  of  the  separation  of  the  states.  He  observed  that  the 
members  of  the  administration  ought  to  act  in  concert ;  that 
the  President  supported  the  measure,  and  that  we  ought  to 
support  him  ;  that  it  was  probable  that  an  appeal  from  me  to 
some  of  my  friends  might  effect  a  change  in  the  vote,  and  the 
machine  of  government,  now  suspended,  be  again  set  in  mo- 
tion. I  told  him  I  was  a  stranger  to  the  whole  subject,  but 
if  he  would  dine  with  me  the  next  day,  I  would  invite  a 
friend  or  two,  and  that  I  thought  it  impossible  that  reason- 
able men  might  not  be  willing  to  make  some  compromise  to 
save  the  Union.  We  did  dine  together  the  next  day,  and 
talked  the  matter  over,  and  came  to  the  conclusion  that  to 
save  the  Union  some  of  the  members  had  better  change  their 
votes.  But  it  was  observed  that  to  do  this  would  be  a  bitter 
pill  to  the  Southern  States,  and  that  some  concomitant  meas- 
ure should  be  adopted  to  sweeten  it  a  little  to  them.  It  was 
thought  that  by  fixing  the  capital  first  at  Philadelphia  tem- 
porarily, and  then  permanently  on  the  Potomac,  this  might 
as  an  anodyne  calm  in  some  degree  the  ferment.  So  to  carry 
the  assumption  bill,  White  and  Lee  agreed  to  change  their 
votes,  and  Hamilton  agreed  to  get  enough  to  carry  the  capital 
bill." 

Both  bills  were  thus  carried.  The  bill  for  the  assumption 
of  the  debts  of  states  had,  however,  been  modified  by  reduc- 
ing the  amount  to  about  one  half  the  sum  proposed  by  Ham- 
ilton. But  the  struggle  developed  the  division  of  parties  on 
the  lines  of  strict  or  liberal  construction  of  the  Constitution. 
Hamilton  became  the  leader  of  the  liberal  constructionists ; 
this  party  appropriated  the  name  of  Federalists.  In  the  Con- 
stitutional Convention,  the  term  "  Federalist "  was  applied  to 


108  CONSTITUTIONAL  HISTORY. 

those  who  wanted  to  amend  the  Articles  of  Confederation  ; 
they  were  in  favor  of  a  federal  as  distinguished  from  a  na- 
tional government.  But  when  the  struggle  began  over  the 
adoption  of  the  new  Constitution,  its  friends  appropriated  the 
name  to  themselves,  thus  reversing  its  signification.  Jeffer- 
son became  the  leader  of  the  strict  constructionists,  and  they 
were  called  Anti-Federalists.  Jefferson  afterwards  said  that 
in  consenting  to  help  carry  the  assumption  bill,  he  had  been 
duped  by  Hamilton  before  he  fully  appreciated  the  signifi- 
cance of  the  measure. 

It  will  be  readily  seen  that  the  strict  constructionists  were 
state-rights  people.  The  stricter  the  Constitution  was  con- 
strued, the  less  power  was  committed  to  the  United  States 
and  the  more  retained  by  the  states.  Hamilton  was  some- 
what disappointed  by  the  failure  of  the  framers  of  the  Con- 
stitution to  adopt  as  strong  a  system  of  government  as  he  con- 
sidered necessary.  But  he  resolved  to  make  the  system  which 
was  adopted  as  strong  as  possible.  He  conceived  that  if  the 
powers  conferred  were  seized  by  a  bold  and  firm  hand,  and 
pushed  to  their  extreme  limits  by  liberal  construction  and  res- 
olute advances,  the  system  might  be  developed  into  a  gov- 
ernment sufficiently  strong  to  accomplish  the  purposes  of  its 
creation.  He  was  intensely  practical  and  active,  the  master 
of  organization  and  expedients,  and  always  had  the  courage 
of  his  convictions.  Jefferson  was  a  theorist,  a  dreamer  of 
dreams,  a  philanthropist,  a  philosopher,  a  doctrinaire,  a  man 
who  studied,  and  thought,  and  reasoned.  He  meditated  in 
dreamy  contemplation  in  his  chair  of  state  upon  human 
rights  and  grave  constitutional  problems  ;  while  Hamilton, 
with  tireless  industry  and  amazing  activity  set  every  power 
of  the  government  which  he  could  grasp  in  vigorous  motion. 
Jefferson  had  no  capacity  for  executive  action.  There  was 
not,  in  the  beginning,  in  the  Department  of  State,  much  for 
him  to  do  ;  but  while  Hamilton  was  busy  with  his  work,  Jef- 
ferson was  slowly  evolving  his  theories.  They  took  the 
form  of  a  protest  against  the  broad  assumption  of  constitu- 
tional power  asserted  by  Hamilton,  and  of  a  plea  for  the 
rights  and  liberties  of  the  states  and  the  people  against  the 
aggressions,  which  he  charged  against  the  policy  of  Hamilton. 


CHARACTER   OF  JEFFERSON.  109 

In  other  words,  he  professed  to  be  a  Republican,  the  champion 
of  the  people,  the  foe  of  centralization  of  power  in  the  gen- 
eral government.  He  believed,  or  affected  to  believe,  that  a 
strong  central  government  would  end  in  the  overthrow  of 
liberty,  and  the  establishment  of  a  monarchy.  This  danger 
must,  he  thought,  be  averted  by  confining  the  powers  of  the 
government  strictly  within  its  functions  as  limited  and  ex- 
pressed in  the  Constitution. 

His  theories  were  greatly  influenced  by  his  sympathy  and 
association  with  the  French  revolutionists.  It  could  scarcely 
be  otherwise.  He  had  been  in  France  five  years.  When  he 
first  went  there,  the  monarchy,  absolute  in  its  powers,  and 
unchallenged  in  its  title,  seemed  to  be  among  the  firmest  of 
all  human  institutions.  Before  he  left,  the  king,  who  needed 
money,  and  did  not  know  how  else  to  get  it,  had  summoned 
the  States-general,  for  the  first  time  after  an  interim  of  one 
hundred  and  fifty-six  years.  Every  reader  knows  how  the 
people,  led  by  circumstances,  rose  in  their  unwonted  use  of 
power,  and  then,  surprised  to  learn  how  strong  they  were, 
went  on,  step  by  step,  until,  in  the  intoxication  and  madness 
of  strength  and  liberty,  they  crushed  monarchy,  king,  nobil- 
ity, clergy,  and  far  too  many  of  the  friends  of  liberty  itself, 
and  made  terror,  for  the  while,  supreme.  Looking  back 
across  the  century,  we  see  that  out  of  all  this  anarchy,  crime, 
and  horror,  the  cause  of  liberty  and  of  the  people  gained. 
Thanks  to  the  French  Revolution,  constitutional  instead  of 
absolute  governments  now  rule  a  great  part,  and  must  ulti- 
mately rule  the  whole  civilized  world.  Perhaps  Jefferson 
dreamed  true.  The  ferment  was  active  when  he  returned 
home.  At  Paris,  his  intimacy  with  Lafayette  introduced 
him  into  the  society  of  the  Republicans.  He  naturally  came 
to  be  regarded  as  an  instructor,  counsellor,  and  friend,  whose 
suggestions  were  valuable.  His  whole  sympathies  were  with 
them.  He  went  daily  to  Versailles  to  attend  the  National 
Assembly.  He  actually  sketched  the  chief  heads  of  a  charter, 
which  he  suggested  should  be  extorted  from  the  king.  He 
especially  sympathized  with  the  maxim  of  government,  "  Let 
us  alone."  If  the  government  is  for  the  people,  let  ft  keep 
its  hands  off  the  people ;  the  less  power  in  the  government  to 


110  CONSTITUTIONAL   HISTORY. 

put  its  hands  on  the  people,  the  better.  These  doctrines  led 
to  the  strictest  construction  of  our  Constitution,  for  the  more 
its  powers  were  cut  down  the  less  the  people  were  molested. 
He  naturally  became  the  apostle  of  the  virtue  and  wisdom  of 
the  people.  Possibly  there  was  a  vein  of  the  demagogue  in 
his  composition  ;  if  so,  he  was  a  master  of  the  art  of  conceal- 
ing it.  He  was  honest  in  his  beliefs,  though  he  may  have 
resorted  to  the  arts  of  the  politician  in  order  to  make  other 
people  adopt  them.  At  any  rate,  as  he  flattered  the  people, 
the  people  rallied  to  his  support.  "  Why  should  one  man 
rule  another?"  he  said.  "Why  should  the  government  admit 
of  such  a  possibility,  beyond  what  is  necessary  for  the  com- 
mon good  ?  and  why  not  guard  the  avenues  of  power  with 
jealous  care,  lest  cunning  men,  like  Hamilton,  crush  our  lib- 
erties under  the  plea  of  necessity  ?  " 

Jefferson  had  acquired  great  reputation  as  the  author  of 
the  Declaration  of  Independence.  There  does  not  seem  to 
be  any  new  enunciation  of  principles  in  that  famous  instru- 
ment. John  Locke,  in  his  treatise  upon  civil  government, 
written  in  defence  of  the  right  of  William  and  Mary  to  the 
throne  of  England,  had  announced  the  same  doctrines,  and  had 
made  them  luminous  by  the  light  of  his  clear  and  compre- 
hensive argument.  Locke  borrows  from  and  credits  much  to 
Hooker,  who  wrote  a  century  before.  Voltaire  and  Jean 
Jacques  Rousseau  had  said  much  the  same  things  ;  and  en- 
forced and  illustrated  them  by  the  wit  and  acuteness  of  their 
genius.  John  and  Samuel  Adams,  James  Otis,  and  Patrick 
Henry  had  made  the  principles  familiar,  in  defence  of  the 
colonies  against  the  aggressions  of  the  crown.  The  colonies 
themselves  had  long  avowed  the  same  principles  in  their 
governments. 

Listen  to  Winthrop,  governor  of  Massachusetts  in  1650,  one 
hundred  and  twenty-six  years  before  the  Declaration  of  In- 
dependence :  "  There  is  a  twofold  liberty,  natural  and  civil. 
The  first  or  natural  liberty  is  common  to  man  with  beasts. 
Man  hath  liberty  to  do  what  he  lists,  evil  or  gOod.  This 
liberty  is  inconsistent  with  authority  ;  to  maintain  this  liberty 
makes  men  grow  more  evil.  All  the  ordinances  of  God  are 
bent  to  restrain  and  subdue  it.     Civil  liberty  has  reference  to 


JEFFERSON'S   GREAT   FAME.  Ill 

political  covenants  and  constitutions  amongst  men.  This  lib- 
erty is  the  proper  end  and  object  of  authority  and  cannot 
subsist  without  it ;  it  is  a  liberty  to  do  only  that  which  is 
good,  just,  and  honest.  This  liberty  you  are  to  stand  for, 
with  not  only  the  hazard  of  your  goods  but  of  your  lives  if 
need  be.  Whatsoever  crosseth  this  is  not  authority,  but  a 
distemper  thereof."  Witness  also  the  Constitution  of  Con- 
necticut formed  in  1638,  and  the  Code  of  Rhode  Island  of 
1650.  Indeed,  the  ancient  democracies  were  governments 
by  the  people.  In  1683  Algernon  Sidney  perished  upon  an 
English  scaffold  under  condemnation  for  high  treason.  The 
main  evidence  against  him  was  extracted  from  his  private 
writings  which  the  king's  officers  found  in  his  closet.  He  had 
written  in  the  privacy  of  his  chamber  that  *'  The  king  is  sub- 
ject to  the  people  that  makes  him  king ; "  and  that  "  God, 
having  given  to  all  men  in  some  degree  a  capacity  of  judging 
what  is  good  for  themselves,  He  hath  granted  to  all  likewise  a 
liberty  of  inventing  such  forms  of  government  as  please  them 
best."  The  pen  of  Jefferson  transcribed  the  treason  of  Sid- 
ney into  the  text  of  the  Declaration. 

Jefferson,  however,  illustrated  the  fact  that  the  man  who 
can  express  in  striking  phrases  the  principles  which  so  many 
feel  to  be  true,  but  cannot  aptly  express,  does  an  important 
work,  and  may,  in  a  great  crisis,  gather  to  himself  much  fame 
and  honor.  This  may  be  said  in  favor  of  the  Declaration : 
Men  had  uttered  the  same  sentiments;  but  great  nations  had 
not  adopted  theni.  His  were  words  fitly  spoken,  and  they 
became  apples  of  gold  in  pictures  of  silver.  Other  writers 
had  contended  for  the  political  liberties  of  the  people ;  but 
now  that  these  had  been  secured,  Jefferson  contended  for 
their  personal  equality  and  liberties  as  well.  The  claims  of 
the  poor  and  the  ignorant  were  embraced  by  his  benevolence. 
All  the  people,  and  not  the  favored  few,  should  take  part  in 
the  control  of  the  government,  and  thus  keep  in  their  own 
hands  the  means  to  protect  themselves. 

I  enlarge  upon  the  peculiarities  of  Jefferson  because  he  is  a 
commanding  f^ure  in  our  national  history.  From  the  begin- 
ning of  the  century  down  to  the  outbreak  of  our  civil  war,  his 
theories  were  the  accepted  creed  of  a  majority  of  our  people. 

•  ■:'^^ 


112  CONSTITUTIONAL  HISTORY. 

His  influence,  though  diminished,  still  survives.  The  phrase 
"  Jeffersonian  democracy  "  is  still  current  among  us.  It  is 
vaguely  thought  to  mean  vt^hatever  is  right  and  safe  in  the 
advance  and  defence  of  liberty  and  good  government.  It  is 
worth  while  to  have  a  phrase  which  means  that.  What  his 
ultimate  place  in  our  history  will  be,  it  is  too  early  to  state. 
It  is  a  hard  test  to  subject  a  man  to  the  judgment  of  the 
generations  that  follow  him.  My  own  opinion  is  that  we 
shall  finally  rank  him  as  the  truest  friend,  apostle,  and  bene- 
factor of  the  masses  of  the  people  which  our  country  has  pro- 
duced, notwithstanding  the  fact  that  his  methods  of  action 
were  weak  and  sometimes  discreditable. 

Washington  brought  Hamilton  and  Jefferson  into  his  cab- 
inet, believing  them  to  be  the  ablest  men  for  the  places  that 
the  country  afforded.  But  for  immediate  results,  Hamilton 
was  far  the  superior  of  Jefferson.  His  active,  organizing, 
constructive  mind,  won  the  confidence  of  Washington.  Al- 
most always  when  Hamilton  and  Jefferson  differed,  Wash- 
ington, after  calmly  weighing  the  arguments  of  each,  followed 
the  advice  of  Hamilton.  Jefferson  records  :  "  Hamilton  and 
I  were  pitted  against  each  other  every  day  in  the  cabinet  like 
two  fighting  cocks." 

The  great  struggle,  however,  between  the  strict  and  liberal 
methods  of  constitutional  construction  began  in  earnest  over 
Hamilton's  proposal,  made  to  Congress  in  December,  1790, 
to  establish  the  Bank  of  the  United  States.  At  that  time 
there  were  only  three  banks  in  the  country  and  currency  was 
scarce.  Hamilton  asserted  that  a  bank  would  be  a  conven- 
ient fiscal  agent,  greatly  helpful  to  the  government  in  the 
management  of  its  finances,  especially  in  making  payments, 
and  in  transmitting  money  from  one  part  of  the  nation  to  the 
other ;  and  would  also  *'  provide  for  the  general  welfare  "  by 
affording  a  convenient  currency,  and  in  giving  that  accom- 
modation to  business  men  which  experience  had  shown  to  be 
in  a  high  degree  useful  and  convenient.  It  was  quickly  ob- 
jected that  this  was  another  measure  to  make  the  wealth  of 
the  country  the  ally  of  the  government,  and  of  the  party 
which  now  began  to  regard  Hamilton  as  its  leader. 

The  constitutional  objection  was  that  to  create  a  bank  is 


FIRST  BANK   OF   THE   UNITED  STATES.  113 

to  create  a  corporation,  and  the  power  to  create  either  a  bank 
or  a  corporation  could  not  be  found  in  the  Constitution.  The 
proposition  was  speedily  deduced  that  in  a  government  of 
delegated,  enumerated  powers,  you  must  put  your  finger  upon 
the  clause  of  the  Constitution  which  contains  or  specifies  the 
power,  otherwise  you  must  admit  that  the  power  does  not 
exist ;  that  if  you  cannot  find  the  power  expressed  in  the 
Constitution,  then  you  must  concede  also  that  it  is  reserved 
to  the  states,  unless  the  Constitution  expressly  denies  the 
power  to  the  states,  which  in  this  case  is  not  done.  Hence,  it 
was  argued,  for  the  United  States  to  exercise  the  power  to 
create  a  bank  or  a  corporation  is  not  only  to  exercise  a  power 
not  conferred  upon  the  United  States  by  the  Constitution, 
but  is  to  encroach  upon  the  powers  reserved  to  the  states. 

It  was  answered  that  the  rule  announced  by  the  oppo- 
nents of  the  bank,  that  unless  you  put  your  finger  upon  the 
words  of  the  Constitution  in  terms  conferring  the  power,  the 
power  does  not  exist,  is  fatally  wrong  ;  that  the  Constitution 
is  an  instrument  made  for  the  purposes  of  a  government;  that 
in  order  to  carry  on  a  government,  whatever  particular  means 
are  necessary  in  order  to  use  the  great  powers  delegated  are 
as  much  within  the  terms  of  the  Constitution  as  if  expressly 
written  therein  ;  that  the  Constitution  does  expressly  enumer- 
ate such  great  powers  as  to  lay  and  collect  taxes,  to  borrow 
money,  to  regulate  commerce,  to  declare  and  conduct  a  war, 
and  to  raise  and  support  armies  and  navies ;  and  that  after 
conferring  these  great  powers  it  then  confers  in  express  lan- 
guage, ''the  power  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the  gov- 
ernment of  the  United  States,  or  in  any  department  or  officer 
thereof."  It  is  true  that  nothing  is  said  in  the  Constitution 
about  the  creation  of  a  bank  or  a  corporation.  But  suppose 
a  bank  is  a  necessary  and  proper  means  to  carry  on  any  or  all 
of  the  other  enumerated  powers,  then  Congress  has  the  power 
by  law  to  create  a  bank  or  corporation,  as  means  to  accom- 
plish the  great  powers  especially  enumerated.  We  grant, 
they  said,  that  Congress  may  not  create  a  bank  or  corporation 
for  the  simple  purpose  of  accommodating  individuals,  however 


114  CONSTITUTIONAL   HISTORY. 

useful  to  them  such  accommodation  may  be.  But  if  a  bank 
is  useful  as  an  agency  to  promote  or  render  convenient  the 
execution  -of  the  powers  delegated  to  the  United  States,  then 
as  a  means  to  the  governmental  end,  the  bank  may  be  created 
within  the  implied  powers  of  the  Constitution.  None  of  the 
powers  conferred  can  be  executed  without  the  employment  of 
means,  and  the  Constitution  does  not  descend  to  the  minutiae 
of  pointing  out  the  precise  methods  to  be  employed,  and  there- 
fore we  cannot  put  our  finger  upon  the  words  which  detail 
them.  Those  who  are  intrusted  with  the  duty  of  executing 
the  powers  must  devise  the  means.  Congress  is  charged  with 
the  power  to  prescribe  by  law  the  agencies  to  be  employed  to 
execute  the  powers  conferred  upon  it ;  and  if  it  shall  judge 
that  the  employment  of  a  bank  is  appropriate,  then  it  may 
provide  for  the  creation  of  a  bank,  to  the  end  that  the  agent 
may  be  at  hand  and  subject  to  command. 

To  this  part  of  the  argument  the  opponents  of  the  bank 
answered  :  "  Grant  that  Congress  may  employ  the  means 
necessary  to  execute  the  great  powers  conferred,  the  Consti- 
tution has  by  express  words,  in  the  section  quoted  by  our  ad- 
versaries, limited  those  means  to  such  as  are  both  *  necessary 
and  proper ; '  and  if  we  grant  that  a  bank  is  proper,  we  do 
not  grant  that  it  is  also  necessary  ;  the  best  that  can  be  said 
for  it  is  that  it  is  simply  convenient,  and  the  Constitution 
does  not  allow  it  because  convenient." 

The  friends  of  the  bank  replied  to  this  by  urging  that  the 
clause  in  question  was  intended  to  enlarge  the  powers  already 
conferred,  not  to  restrict  them  ;  that  it  was  found  among  the 
powers  granted,  not  among  the  limitations  upon  such  powers ; 
that  the  word  "  necessary  "  did  not  imply  that  the  means  to 
be  used  should  be  indispensable,  as  in  another  case  where  the 
word  *'  necessary  "  was  preceded  by  the  word  "  absolutely  ;  " 
that  it  was  rather  equivalent  to  "  requisite,"  "  needful,"  "  con- 
ducive to ; "  and  that  in  any  event.  Congress  must  be  the 
judge  of  the  degree  of  necessity,  since  the  word  plainly  ad- 
mitted of  different  degrees,  and  hence  that  the  true  construc- 
tion was,  as  Chief  Justice  Marshall  afterwards  formulated  it, 
'*  Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the 
Constitution,  and  all  means  which  are  appropriate,  which  are 


VIGOR   OF  THE   FIRST   ADMINISTRATION.  115 

plainly  adapted  to  that  end,  which  are  not  prohibited,  but 
consist  with  the  letter  and  spirit  of  the  Constitution,  are  con- 
stitutional." 

This  argument  prevailed,  and  the  bank  was  created,  and 
the  Federalists  won  the  victory.  It  was  a  substantial  victory, 
for  it  brought  the  support  of  a  great  moneyed  institution  to 
the  new  government,  its  creator.  Twenty-five  years  after- 
wards the  Supreme  Court  of  the  United  States,  in  a  suit 
against  the  bank  brought  by  the  State  of  Maryland,  sustained 
the  constitutionality  of  the  bank,  using  a  method  of  reasoning 
similar  to  that  just  presented. 

In  the  triumph  of  the  friends  of  the  bank,  the  Anti-Fed- 
eralists feared  that  a  principle  of  constitutional  construction 
was  adopted  that  must  inevitably  lead  to  that  extension  of 
the  federal  power  which  would  overthrow  the  rights  of  the 
states  and  the  liberties  of  the  people. 

Jefferson  said  :  "  The  object  of  all  Hamilton's  plans,  taken 
together,  is  to  draw  all  the  powers  of  government  into  the 
hands  of  the  general  legislature  ;  to  establish  means  for  cor- 
rupting a  sufficient  corps  in  that  legislature  to  divide  the 
honest  votes,  and  preponderate  by  their  votes  the  scale  which 
suited ;  and  to  have  the  corps  under  the  command  of  the  Sec- 
retary of  the  Treasury  for  the  purpose  of  subverting,  step  by 
step,  the  principles  of  the  Constitution,  which  he  has  so  often 
declared  to  be  a  thing  of  nothing,  that  must  be  changed." 
The  opposition  to  the  bank  was  very  great  in  some  of  the 
states.  Virginia  by  its  legislature  had  already  sent  a  memo- 
rial to  Congress  asking  that  both  the  assumption  law  and  the 
funding  law  be  repealed.  It  declared  the  assumption  law  to 
be  a  violation  of  the  Constitution  and  pregnant  with  disaster 
to  the  government.  This  memorial  drew  from  Hamilton  the 
prophetic  utterance  :  "  This  is  the  first  symptom  of  a  spirit 
which  must  either  be  killed,  or  which  will  kill  the  Constitu- 
tion of  the  United  States."  The  bank  was  a  success,  and  a 
pillar  of  strength  to  the  new  government.  The  present  na- 
tional banks  are  its  legitimate  offspring.  The  constitutional 
controversies  it  evoked  lasted  until  the  civil  war. 

By  the  close  of  the  first  Congress  the  new  nation  had  made 
long  strides  towards  its  permanent  organization.     Its  financial 


116  CONSTITUTIONAL  HISTORY. 

policy  had  been  developed ;  its  revenues  were  collected  with 
certaint}^  and  regularity.  They  were  sufficient  for  its  expendi- 
tures, which  were  a  marvel  of  cheapness  when  compared  with 
those  of  the  European  governments,  and  they  gave  promise 
of  the  ultimate  extinguishment  of  the  national  debt.  The 
Executive  Departments  were  organized  and  in  systematic  op- 
eration. The  courts  were  discharging  their  functions.  Two 
years  of  intelligent  and  patriotic  work,  with  but  slight  hin- 
drance from  partisanship,  had  accomplished  surprising  results. 
Commerce  had  increased,  new  enterprises  were  undertaken, 
emigration  was  moving  beyond  the  Ohio  River  and  Alleghany 
Mountains. 

Confidence  in  the  new  government  had  steadily  grown. 
Rhode  Island  and  North  Carolina  had  finally  ratified  the  new 
Constitution,  and  two  new  states,  Vermont  and  Kentucky,  had 
been  admitted  into  the  Union.  The  era  of  prosperity  seemed 
to  have  commenced.  But  the  new  order  of  government  had 
evoked  new  interests,  new  causes  of  jealousy,  and  new  ani- 
mosities. The  old  order  of  vested  political  interests  had  been 
disturbed.  Devotion  to  the  new  union  had  been  made  the 
test  of  political  action.  The  younger  race  of  federal  politi- 
cians were  carrying  everything  before  them  in  the  states.  The 
old  political  leaders  who  held  aloof  from  the  new  order  were 
pushed  from  their  official  seats,  and  Federalists  sat  in  their 
places. 

These  changes  begat  animosities.  The  opposition  party 
which  had  been  forming  in  the  first  Congress  was  much  more 
pronounced  in  the  second,  and  was  strengthened  by  the  mal- 
contents who  found  themselves  pushed  against  the  political 
wall.  State  and  sectional  jealousies  had  been  excited.  The 
strong  hand  which  had  been  placed  beneath  the  new  ggvern- 
ment,  its  bold  assumption  of  constructive  powers,  its  alleged 
^^  favoritism  of  moneyed  interests,  its  imputed  tendency  towards 
aristocracy  if  not  monarchy,  afforded  abundant  occasion  of 
fault-finding.  The  anti-federal  party  came  into  being  as  a 
natural  growth.  It  came  to  stay.  It  would  soon  seize  and 
long  retain  the  helm  of  government.  It  would  take  on  new 
names,  divide  into  factions  and  seem  to  disappear,  but  not 
for  long ;  finally  it  would  reappear  and  under  the  name  of 


THE  WHISKEY  INSURRECTION.  117 

Democracy,  pass  from  power  with  the  administration  of  James 
Buchanan,  and  resume  it  with  the  administration  of  Grover 
Cleveland. 

The  second  Congress  was  greatly  distracted  by  dissensions. 
The  contending  parties  were  respectively  inspired  by  Hamil- 
ton and  Jefferson.  Hamilton  and  his  measures  were  the  ob- 
ject of  attack.  The  victory  remained  with  Hamilton  during 
this  Congress,  not  so  much  in  the  new  measures  which  he  pro- 
posed, as  in  defeating  the  schemes  which  were  devised  to  over- 
throw him. 

An  unsuccessful  effort  was  made  in  this  Congress  to  regu- 
late commerce  upon  the  basis  of  discriminating  in  duties  upon 
imports  according  to  the  commercial  advantages  extended  to 
us,  or  withheld  from  us,  by  foreign  nations.  Manifestly  such 
a  system  was  contemplated  by  the  framers  of  the  Constitution. 
But  the  European  powers  were  involved  in  the  war  which  the 
French  Revolution  provoked.  Our  sympathies  were  with  the 
French,  but  our  mercantile  and  commercial  interests  were 
largely  dependent  upon  and  controlled  by  British  capital ;  and 
although  bills  for  the  purpose  passed  the  House,  they  were 
rejected  by  the  Senate.  The  charge  was  made  that  British 
influence  was  more  powerful  than  American.  Such  a  charge 
easily  won  belief  among  those  who  were  controlled  by  their 
sympathies  or  prejudices.  It  was  partly  true.  But  it  was 
also  true  that  we  had  more  to  gain  by  preserving  our  estab- 
lished business  relations  with  English  traders,  than  by  sever- 
ing them  and  trying  to  establish  new  relations  with  a  govern- 
ment and  people  so  thoroughly  unstable  and  demoralized  as 
were  the  French  in  the  early  years  of  their  revolutionary 
paroxysms. 

American  shipping  was  encouraged  by  a  discount  of  ten  per 
centum  of  the  duties  upon  the  goods  imported  by  it,  and  by  a 
tax  rate  which  discriminated  in  its  favor ;  but  the  system  of 
discriminatory  duties,  in  which  imports  from  friendly  foreign 
nations  should  be  favored,  has  never  been  adopted  by  general 
law,  and  not  at  all,  except  in  a  few  unimportant  instances,  by 
treaty  regulations. 

The  important  question  of  the  ability  of  the  government  to 
enforce  an  odious  excise  law  was  now  challenged  but  success- 
fully answered. 

ITT 


118  CONSTITUTIONAL  HISTORY. 

In  1791,  a  tax  was  imposed  by  Congress  upon  whiskey  dis- 
tilled in  the  United  States.  "  Excise "  was  an  unpleasant 
word  to  those  whose  memories  went  back  to  ante-revolution 
days.  But  the  assumption  of  the  state  debts  made  it  neces- 
sary to  have  recourse  to  this  source  of  taxation.  In  Western 
Penns^^lvania,  where  whiskey  was  manufactured,  the  people 
resolved  to  resist  the  collection  of  the  tax.  A  tax  collector 
was  tarred  and  feathered  and  robbed  of  his  horse.  Similar 
acts  of  violence  were  practised  upon  other  officers.  Whoever 
attempted  to  support  the  officers  in  the  collection  of  the  tax 
exposed  his  life  and  property  to  danger.  The  administration 
did  not  feel  strong  enough  at  first  to  attempt  by  force  the  col- 
lection of  the  excise.  Congress  passed  an  act  providing  for 
calling  out  the  militia,  at  the  same  time  reducing  the  tax. 
But  the  amended  law  was  no  more  favorably  received  than  the 
original.  The  power  of  the  United  States  to  lay  the  tax,  much 
more  to  collect  it,  was  openly  denied.  The  tax  was  charac- 
terized as  a  national  halter  upon  the  neck  of  the  states.  The 
whiskey  patriots  opened  correspondence  with  malcontents 
throughout  the  Union.  It  is  not  to  be  doubted  that  the  mal- 
contents were  numerous. 

Jefferson  sympathized  with  the  rebels,  partly  because  he 
thought  their  complaints  were  just,  and  partly  because  he 
could  rejoice  in  the  defeat  of  Hamilton.  Hamilton  wanted 
the  revenue  which  the  excise  would  yield  ;  he  wanted  to  seize 
this  valuable  field  of  revenue  before  the  states  should  occupy 
it.  Now  that  the  collection  was  opposed,  and  leading  Anti- 
Federalists  sympathized  with  the  rebels,  he  advised  the  Presi- 
dent to  call  out  15,000  militia,  and  the  President  issued  the 
call.  Hamilton  had  great  fear  that  the  militia  would  not  re- 
spond to  the  call,  but  they  did  come  forth,  they  did  obey,  and 
the  crisis  was  safely  passed.  The  militia  of  Pennsylvania 
turned  out  largely  through  the  influence  of  the  governor  of 
that  state,  who  overcame  their  disaffection  more  by  his  per- 
suasive oratory  than  by  his  authority.  The  suppression  of 
this  insurrection  was  stigmatized  as  the  triumph  of  federal 
despotism.  If,  as  was  feared,  the  troops  had  refused  to  obey 
orders,  it  is  probable  the  government  would  have  fallen  into 
such   contempt    that    its   dissolution   could    not    have   been 


GENERAL   WAYNE'S  VICTORY.  119 

averted.  But  fortunately  the  national  authority  was  obeyed, 
and  the  apparent  strength  of  the  national  power  compelled 
respect. 

General  Wayne's  victory  over  the  northwestern  Indians, 
whose  hostility  it  was  believed  had  been  stimulated  by  British 
influence,  was  a  national  triumph  in  which  all  parties  could 
rejoice.  It  was  won  in  1794,  and  was  followed  by  a  treaty  of 
peace,  which  was  long  observed. 


LECTURE    VI. 

THE  PASSAGE  OF  THE  NATION  THROUGH  PERILS. 

Troubles  with  France  and  England.  —  Alien  and  Sedition 
Laws.  —  Virginia  and  Kentucky  Resolutions.  —  Downfall  of 
THE  Federal  Party.  —  Jeffersonian  Era  of  Strict  Construc- 
tion. —  Fears  of  Monarchy.  —  Of  Dissolution. —  French  and 
English  Outrages. — War  with  England.  —  Peace.  —  Hart- 
ford Convention.  —  Era  of  Good  Feeling.  —  Internal  Im- 
provements. —  Monroe  Doctrine. 

Washington  retained  the  confidence  of  his  countrymen 
and  was  unanimously  reelected.  For  the  twenty-two  years 
commencing  with  his  second  administration,  and  closing  with 
the  peace  of  1815,  our  country  was  kept  in  turmoil  by  Eng- 
land and  France.  Sometimes  war  threatened  us  with  Eng- 
land and  sometimes  with  France,  and  it  was  a  happy  season 
when  we  were  not  in  trouble  with  both  at  the  same  time. 
We  tried  hard  to  preserve  friendly  relations  with  both  and  to 
avoid  giving  offence  to  either;  but  in  their  efforts  to  destroy 
each  other  they  were  too  eager  and  too  jealous  to  be  just. 
We  would  have  been  content  with  a  very  moderate  share  of 
fair  treatment,  and  no  doubt  if  we  had  been  in  a  condition  to 
do  it,  we  would  have  declared  war  against  both.  Our  own 
government  seemed  to  be  growing  in  strength  ;  Hamilton's 
organizations  and  measures  were  operating  well.  But  in  our 
foreign  relations  we  were  obliged  to  take  counsel  of  our  weak- 
ness. The  nation  staggered  along  amidst  perils  foreign  and 
domestic  until  J.815,  when  suddenly  peace  with  England  dis- 
pelled all  dangers  ;  the  "  era  of  good  feeling  "  succeeded,  and 
our  people  vied  with  each  other  in  devotion  to  the  Union. 

Our  sympathies  were  naturally  with  the  French.  In  our 
struggle  with  Great  Britain,  the  French  monarchy  had  sent  us 
troops,  lent  us  money,  and  made  our  cause  its  own.  The  help 
was  timely  and  important;    it  was  sorely  needed.     True,  it 


TROUBLES  WITH  ENGLAND  AND  FRANCE.   121 

was  the  French  monarchy  and  not  the  republic  that  helped  us  ; 
a  monarchy  which  utterly  repudiated  both  in  theory  and  prac- 
tice the  idea  that  the  people  bore  any  relation  to  government, 
except  as  subjects,  bound  to  implicit  obedience.  True  it  was 
that  the  motive  in  lending  us  aid  was  to  injure  England  by 
depriving  her  of  her  American  colonies,  — colonies  which 
France  once  had  hoped  to  call  her  own.  But  whatever  the 
motive,  the  United  States  reaped  the  benefit,  and  the  grati- 
tude of  our  people  was  great.  Our  zeal  and  devotion  were  the 
greater  because  now,  after  centuries  of  appalling  oppression, 
the  French  so  boldly,  and  apparently  so  successfully,  followed 
our  example  in  striking  for  their  liberties.  When  they  con- 
firmed their  republic  by  executing  their  king,  we  could  not 
quite  approve  the  means,  but  we  were  ready  to  pardon  much 
to  the  spirit  of  liberty. 

War  was  declared  between  England  and  France  in  1793. 
France  appealed  to  us  for  such  help  as  we  could  give.  Hat- 
ing England  and  loving  France,  hating  despotism  and  loving 
freedom,  our  hearts  were  already  with  the  latter.  Moreover, 
during  our  Revolution,  in  the  very  crisis  of  our  peril,  we  had 
made  a  treaty  with  the  king  of  France,  in  which  each  power 
bad  agreed  to  help  the  other  in  her  war  against  her  enemy. 
This  treaty  gave  privileges  to  France  and  denied  them  to 
England,  and  if  we  should  adhere  to  it  we  would  become  the 
ally  of  France  and  the  enemy  of  England.  Washington  pon- 
dered long  over  the  situation ;  it  was  critical.  Why  should 
we,  in  our  feeble  condition,  when  we  had  just  achieved  a  fa- 
vorable start  upon  our  national  career,  endanger  all  by  our 
sentimental  interference  in  European  affairs?  Hamilton 
studied  the  treaty  and  found  that  its  language  described  it 
to  be  a  "  defensive  alliance  "  between  us  and  France.  His 
quick  mind  clearly  distinguished  between  a  defensive  alliance 
and  an  aggressive  one.  Although  France  had  at  first  taken 
up  arms  to  repel  aggression  and  invasion,  she  now  entered 
upon  aggressive  war,  and  declared  it  to  be  her  purpose  to 
overthrow  monarchies,  and  carry  the  blessings  of  freedom  to 
the  nations  of  the  earth.  Washington  adopted  the  distinc- 
tion suggested  by  Hamilton,  and  issued  a  proclamation  of 
neutrality,  to  the  disgust  of  Jefferson,  who  affected  to  despise 


122  CONSTITUTIONAL  HISTORY. 

such  a  pettifogging  quibble.  This  proclamation  greatly  in- 
censed our  people,  or  at  least  those  of  them  whose  commercial 
interests  did  not  incline  them  to  favor  England.  The  French 
republic  sent  her  minister,  Genet,  to  this  country.  England 
had  not  yet  sent  any  minister  here.  Washington  was  willing 
to  receive  Genet,  but  the  latter  chose  to  stir  up  the  country 
against  the  administration  before  he  presented  his  credentials. 
He  landed  at  Charleston,  South  Carolina,  and  was  received 
there,  and  everywhere  he  went,  with  the  utmost  transports 
of  enthusiasm.  He  brought  with  him  three  hundred  blank 
commissions,  to  be  distributed  to  such  persons  as  should  fit 
out  cruisers  in  our  ports  to  prey  upon  English  and  Spanish 
commerce,  and  seize  the  Spanish  territories  of  Florida  and 
Louisiana.  He  opened  stations  for  the  enlistment  of  Ameri- 
can sailors,  established  consulate  courts  to  try  and  condemn 
the  prizes  taken  by  French  privateers,  and,  in  short,  at- 
tempted to  organize  this  nation  into  an  armed  and  active 
belligerent  against  England.  For  a  while  he  seemed  to  be 
so  far  supported  by  the  wild  enthusiasm  of  the  people  as  to 
threaten  the  supremacy  of  Washington's  government. 

John  Adams,  then  Vice-President,  afterwards  wrote :  "  You 
certainly  never  felt  the  terrorism  excited  by  Genet  in  1793, 
when  ten  thousand  people  in  the  streets  of  Philadelphia  day 
after  day  threatened  to  drag  Washington  out  of  his  house  and 
effect  a  revolution  in  the  government,  or  else  compel  it  to 
declare  war  in  favor  of  the  French  Revolution,  and  against 
England.  The  coolest  and  firmest  minds  even  among  the 
Quakers  in  Philadelphia  have  given  their  opinions  to  me  that 
nothing  but  the  yellow  fever,  which  removed  Dr.  Hutchinson 
and  Jonathan  D.  Seargeant  (the  ringleaders)  from  the  world, 
could  have  saved  the  United  States  from  a  fatal  revolution  in 
government." 

Of  course  Washington  was  firm  in  the  course  he  had  re- 
solved to  take ;  he  forbade  Genet's  acts,  did  what  he  could  to 
counteract  them,  and  finally  procured  his  recall. 

Under  the  influence  of  Genet,  political  clubs  were  formed 
throughout  the  country  upon  the  model  of  the  Jacobin  clubs, 
which  at  that  time  were  practically  the  dominant  power  over 
the  French  government.   ^  His  idea  was  that  they  would  over- 


TROUBLES  WITH  ENGLAND  AND  FRANCE.    123 

awe  the  administration  here,  as  they  did  the  legislative  as- 
sembly, then  the  ruling  power  in  France.  These  clubs  were 
called  republican  clubs.  The  Federalists  stigmatized  them 
as  democratic  clubs,  and  their  members  as  Democrats.  The 
term  ''  Democracy  "  in  that  day  was  a  word  of  reproach,  sig- 
nifying a  disorderly,  riotous,  and  ignorant  mob.  It  has  a  bet- 
ter meaning  now.  It  is  part  of  the  legacy  of  the  French  Rev- 
olution. 

The  excesses  of  the  French  Revolution  finally  caused  a  re- 
action of  feeling  among  our  people,  and  Washington  was 
applauded  for  his  wisdom  and  firmness. 

But  the  little  sympathy  our  government  extended  to  the 
French  did  not  keep  us  out  of  difficulty  with  England.  Both 
England  and  the  United  States  claimed  that  the  provisions  of 
the  treaty  of  1783  had  not  been  observed.  England  accused 
us  of  not  paying  our  debts  to  her  merchants,  an  accusation 
largely  true.  Hence  she  retained  her  military  posts  upon  our 
northern  frontier.  We  complained  of  this  act  of  hostility. 
We  complained  still  more  of  her  hostility  to  our  merchant 
marine.  France  enlisted  her  able-bodied  men  in  her  armies, 
and  did  not  leave  enough  to  cultivate  her  fields.  Her  armies 
and  people  could  scarcely  get  food  to  eat,  certainly  not 
enough.  Our  merchant  ships  sought  to  carry  them  provi- 
sions, humanity  and  profit  conspiring.  England  claimed  that 
starvation  was  an  effective  means  of  war,  and  that  our  bread- 
stuffs,  in  transport  to  her  enemy,  were  contrabrand  of  war 
and  lawful  prize.  She  captured  many  of  these  ships,  and  im- 
pressed into  her  service  many  an  American  sailor.  Washing- 
ton's policy  was  peace  if  possible.  Though  he  had  reason  to 
fear  that  England  would  not  treat  with  us,  he  sent  there 
Chjef.  Justice  Jay,  who  succeeded  in  negotiating  a  treaty. 
This  is  famous  as  "  Jay's  Treaty."  It  was  not  much  in  our 
favor  ;  it  was  liberal  to  England  and  inimical  to  the  French, 
and  our  people  were  again  greatly  exasperated.  Among 
other  things  it  provided  that  our  debts  to  English  merchants 
should  be  paid,  and  our  supplies  of  bread  to  the  French 
should  stop.  The  Anti-Federalists  resisted  the  ratification  of 
the  treaty  with  the  utmost  desperation.  But  it  was  ratified 
by  the  Senate.     An  appropriation  was  needed  to  carry  out 


124  CONSTITUTIONAL  HISTORY. 

the  provisions  of  the  treaty,  and  the  bill  for  this  had  to  origi- 
nate in  the  House  of  Representatives.  The  enemies  of  the 
treaty  sought  to  defeat  the  appropriation.  It  was  urged  in 
its  support  that  Congress  had  no  constitutional  right  to  re- 
fuse the  appropriation,  since  the  treaty  was  declared  by  the 
Constitution  to  be  the  supreme  law  of  the  land.  After  a 
long  and  bitter  discussion.  Congress  made  the  necessary  ap- 
propriation. 

The  constitutional  question  thus  raised  was  long  a  vexed  one, 
but  the  rule  is  now  settled,  that  if  it  is  necessary  for  Congress 
to  pass  any  law  in  order  to  carry  a  treaty  into  effect.  Con- 
gress has  the  constitutional  right  to  refuse  to  pass  the  law, 
and  may  thus  defeat  or  break  the  treaty.  The  reason  is,  that 
by  the  Constitution  both  a  treaty  made  and  a  law  passed  in 
pursuance  of  the  powers  conferred  by  the  Constitution  are 
equally  the  supreme  law,  and  where  the  two  conflict,  the 
latest  supreme  law  prevails.  A  treaty  thus  supersedes  an 
earlier  law  in  conflict  with  it,  and  a  later  conflicting  law  su- 
persedes or  breaks  the  earlier  treaty.  If  Congress  fails  to 
pass  the  law  which  the  treaty  requires,  the  treaty  is  defeated 
or  broken. 

Now  the  French  in  their  turn  were  exasperated.  They 
retaliated  by  making  capture  of  our  ships.  We  made  some 
reprisals.  Our  treaty  relations  were  declared  to  be  at  an  end. 
We  could  come  to  no  understanding,  nor  make  any  new 
treaty  with  France,  so  long  as  the  French  Directory,  the 
executive  power  of  France,  held  sway.  This  Directory  re- 
mained in  power  from  1795  until  Napoleon  captured  the  gov- 
ernment and  became  First  Consul  in  December,  1799. 

Meanwhile  Washington  retired  and  John  Adams,  the  suc- 
cessful candidate  of  the  federalist  party,'  Kecame  President. 
Adams  was  the  revolutionary  patriot  and  leader,  a  learned, 
good,  and  great  man,  despite  an  unfortunate  mixture  in  his 
greatness  of  vanity,  irritability,  and  proneness  to  jealousy. 
The  conduct  of  the  Directory  was  evasive,  misleading,  and 
mercenary.  In  1797  Adams  sent  three  envoys  to  France  to 
try  to  negotiate  a  treaty.  They  were  unofficially  informed 
that  the  Directory  would  not  negotiate  with  them  unless  first 
presented  with  a  large  sum  of  money.     "  Millions  for  defence, 


THE  ALIEN  AND   SEDITION  LAWS.  125 

bat  not  one  cent  for  tribute,"  was  the  indignant  response  of 
the  nation.  War  seemed  inevitable,  and  the  federal  party- 
was  anxious  for  it.  But  the  President  was  anxious  for  peace, 
and  ruptured  his  party  and  lost  his  reelection  by  his  efforts 
to  preserve  it: ' 

When  Napoleon  came  into  power  a  treaty  was  made.  This 
treaty  among  other  things  left  our  claims  for  French  spolia- 
tions to  be  provided  for  by  ourselves.  In  1885  our  Congress 
passed  an  act  for  determining  the  validity  and  amount  of  such 
claims  as  might  be  presented,  but  the  act  to  provide  for  pay- 
ing them  still  remains  to  be  passed.  Jay's  treaty  with  Eng- 
land did  not  protect  us  against  her  impressment  of  our  sea- 
men. 

The  outrages  which  we  suffered  from  the  injustice  of  Eng- 
land and  France  gave  additional  bitterness  to  the  strife  be- 
tween parties  at  home.  The  anti-federal  press  was  immod- 
erate in  its  assaults  upon  the  administration.  It  so  happened 
that  several  of  the  anti- federal  papers  were  conducted  by 
foreigners.  Indeed,  there  were  many  foreigners  in  the  coun- 
try whose  sympathies  were  with  the  French,  and  their  hostil- 
ity to  the  administration  was  open  and  passionate.  The  fed- 
eraUeaders  determined  to  crush  out  by  the  strong  arm  of  the 
laTN^hese  publishers  of  slanders  and  fomenters  of  discontent. 
Hence  the  famous  "alien  and  sedition  laws"  were  passed. 
The  remedy  devised  was  far  worse  than  the  disease.  It  has- 
tened jthejgderal  party  to  its  tomb,  and  was  the  occasion  of 
the  formulation  of  that  unfortunate  creed  of  constitutional 
construction  and  of  state  sovereignty  known  as  the  "  Virginia 
and  Kentuckyjlesolutions  "  of  1798-99.  These  resolutions 
had  the  sanction  of  the  great  names  of  Madison  and  Jeffer- 
son. The  resolutions  were  the  ever  ready  support  of  the 
threats  of  j[Jisunion,  nullification,  and  secession.  However 
overborne  by  argument,  they  were  never  silenced  by  it,  and 
were  only  effectually  put  to  rest  when  Lee  surrendered  to 
Grant  in  1865. 

By  one  of  the  alien  bills  the  President  was  authorized  to 
cause  the  banishment  of  aliens  suspected  by  him  to  be  dan- 
gerous to  the  peace  and  safety  of  the  United  States.  Such  a 
bill  is  of  the  very  essence  of  despotism  and  arbitrary  power. 


126  CONSTITUTIONAL  HISTORY. 

Hamilton,  who  now  was  out  of  office,  in  vain  exclaimed 
against  it.  It  contravened  both  the  letter  and  the  spirit  of 
the  Constitution.  The  sedition  act  authorized  punishment  of 
the  authors  of  false,  scandalous,  and  malicious  writings  and 
speeches  against  the  government,  made  with  the  intent  to 
stir  up  sedition.  The  bill,  unlike  the  alien  act,  did  not  dis- 
pense with  the  usual  forms  of  trial,  but  it  manifestly  was  in- 
tended to  abridge  the  freedom  of  speech  and  of  the  press,  and 
was  therefore  a  violation  of  the  first  amendment  of  the  Con- 
stitution. Besides,  the  Constitution  conferred  no  power  to 
punish  common  law  offences,  of  which  this  was  one.  To  the 
credit  of  the  President  he  never  exercised  any  of  the  arbi- 
trary powers  vested  in  him  by  the  alien  bill. 

But  the  prosecutions  under  the  sedition  bill  were  numerous. 
Some  were  ridiculous,  and  most  were  grossly  oppressive. 
President  Adams,  on  his  return  from  the  seat  of  government 
in  1799,  passed  through  Newark,  N.  J.  Some  cannon  were 
fired  in  compliment  to  him  as  he  passed  through  the  village. 
An  Anti-Federalist,  by  the  name  of  Baldwin,  was  heard  to 
remark  that  he  wished  the  wadding  from  the  cannon  had  hit 
the  President  in  his  backsides.  For  this  speech  he  was  con- 
demned to  pay  a  fine  of  a  hundred  dollars. 

One  Judge  Peck  of  Otsego,  in  the  State  of  New  York,  cir- 
culated a  petition  asking  the  repeal  of  the  alien  and  sedition 
laws.  He  was  indicted  in  the  city  of  New  York  for  this  al- 
leged offence,  and  taken  from  his  home  to  New  York  for  trial, 
but  he  was  never  tried.  His  forced  carriage  to  New  York 
was  the  occasion  of  great  excitement,  and  Federalism  was  held 
up  to  public  execration.  Matthew  Lyon  of  Vermont,  a  mem- 
ber of  Congress,  and  a  candidate  for  reelection,  in  a  published 
address  charged  the  President  with  "  unbounded  thirst  for 
ridiculous  pomp,  foolish  adulation,  and  selfish  avarice."  For 
this  offence  he  paid  a  fine  of  one  thousand  dollars,  and  lay 
four  months  in  jail.  He  passed  from  the  jail  to  his  seat  in 
Congress  ;  the  Federalists  made  an  attempt  to  expel  him,  be- 
cause branded  with  a  conviction  for  sedition,  but  the  neces- 
sary two  thirds  could  not  be  secured.  In  1840  Congress  re- 
funded to  Lyon's  heirs  the  amount  of  the  fine  with  interest. 
Other  prosecutions  for  sedition  were  only  a  little  less  flagrant. 


VIRGINIA    AND  KENTUCKY  RESOLUTIONS.  127 

Jefferson  was  the  acknowledged  leader  of  the  Anti-Fed- 
eralists, now  self-styled  the  republican  party.  He  was  quick 
to  see  that  the  federal  leaders  had  made  a  mistake,  and  was 
prompt  to  use  that  mistake  to  their  downfall.  His  idea  was 
to  overwhelm  the  federal  government  and  leaders  by  a  sharp, 
sudden,  and  peremptory  command  of  halt,  from  the  states, 
which  in  his  creed  were  the  equals,  and  in  effect  the  masters, 
of  the  general  government.  Without  allowing  his  agency  to 
be  disclosed,  he  procured  resolutions  denouncing  the  alien  and 
sedition  laws  as  unconstitutional  and  dangerous  usurpations 
of  power  to  be  adopted  by  the  legislatures  of  Virginia  and 
Kentucky.  Madison  stood  sponsor  for  the  Virginia  Resolu- 
tions. These  resolutions  threatened  in  an  undefined  way  the 
interposition  of  the  state  to  arrest  the  evils  of  the  unconstitu- 
tional legislation  of  the  federal  Congress.  The  important  one 
is  as  follows :  — 

"  This  assembly  doth  explicitly  and  peremptorily  declare  that  it 
views  the  powers  of  the  federal  government  as  resulting  from  the 
compact  to  which  the  states  are  parties,  as  limited  by  the  plain  sense 
and  intention  of  the  instrument  constituting  that  compact,  as  no  far- 
ther valid  than  they  are  authorized  by  the  grants  enumerated  in  that 
compact,  and  that  in  case  of  a  deliberate,  palpable,  and  dangerous 
exercise  of  other  powers  not  granted  by  the  said  compact,  the  states 
who  are  parties  thereto  have  the  right,  and  are  in  duty  bound,  to  in- 
terpose for  arresting  the  progress  of  the  evil  and  for  maintaining 
within  their  respective  limits  the  authorities,  rights,  and  liberties  ap- 
pertaining to  them." 

The  Kentucky  Resolution  was  not  toned  down  by  the  cau- 
tious hand  of  Madison,  but  retained  the  form  which  Jefferson 
gave  it.     It  reads :  — 

"  Resolved,  That  the  several  states  comprising  the  United  States  of 
America  are  not  united  on  the  principle  of  unlimited  submission  to 
their  general  government,  but  that  by  compact  under  the  style  and 
title  of  a  Constitution  for  the  United  States,  and  amendments  there- 
to, they  constituted  a  general  government  for  special  purposes,  dele- 
gated to  that  government  certain  definite  powers,  reserving  each  state 
to  itself  the  residuary  mass  of  their  right  to  their  own  self-govern- 
ment, and  that  whensoever  the  general  government  assumes  undele- 
gated powers,  its  acts  are  unauthoritative,  void,  and  of  no  force ;  that 


128  CONSTITUTIONAL  HISTORY. 

to  this  compact  each  state  acceded  as  a  state,  and  is  an  integral  party  ; 
that  this  government  created  by  this  compact  was  not  made  the  ex- 
clusive or  final  judge  of  the  extent  of  the  powers  delegated  to  itself; 
since  that  would  have  made  its  discretion,  and  not  the  Constitution, 
the  measure  of  its  powers ;  but  that  as  in  all  other  cases  of  compact 
among  parties  having  no  common  judge,  each  party  has  an  equal  right 
to  judge  for  itself,  as  well  of  infractions,  as  of  the  mode  and  measure 
of  redress." 

Under  this  resolution  the  state  might  not  only  interpose, 
but  be  the  judge  of  the  mode  and  measure  of  redress.  This 
resolution  was  the  text  of  the  secession  and  nullification  doc- 
trine of  after  years.  Jefferson  hoped  that  other  states  would 
unite  in  the  same  declaration,  but  they  refused.^ 

Armed  resistance  to  the  federal  measures  was  no  doubt  con- 
templated by  Virginia.  This  state  went  so  far  as  to  cause  a 
great  armory  to  be  built  at  Richmond,  in  order  to  be  ready  to 
make  good,  in  whatever  way  should  appear  practicable,  her 
demands  upon  the  federal  government. 

It  is  probably  a  fair  inference  to  be  drawn  from  the  action 
of  Mr.  Jefferson  that  he  then  gravely  doubted  whether,  in  the 
light  of  his  construction  of  the  tendencies  and  purposes  of 
the  federal  party  and  government,  the  new  experiment  of  a 
national  government  was,  if  it  could  not  be  corrected,  worth 
continuing.  We  do  know  that  be  meant  to  hurl  the  federal 
party  from  power  and  thus  correct  the  tendency  of  the  gov- 
ernment, if  possible  ;  he  probably  never  fully  settled  in  his 
own  mind  what  specific  course  he  would  advise,  if,  after  all, 
the  federal  party  could  not  be  overthrown  by  peaceful  agen- 
cies. In  considering  the  Virginia  and  Kentucky  Resolutions, 
we  should  not  hold  Jefferson  responsible  for  the  use  to  which 
they  were  put  long  after  he  was  in  his  grave.     They  helped 

1  The  Assembly  of  the  State  of  New  York  responded  by  resolution  adopted 
February  16,  1799,  as  follows  :  — 

"Resolved,  That  as  the  right  of  deciding  on  the  constitutionality  of  laws  passed 
by  the  Congress  of  the  United  States  doth  pertain  to  the  judiciary  department  of 
the  government,  this  house  doth  accordingly  disclaim  the  power  assumed  in  and 
by  the  communicated  resolutions  of  the  respective  legislatures  of  Virginia  and 
Kentucky,  questioning  the  expediency  or  constitutionality  of  the  several  acts  of 
Congress  in  them  referred  to."  Similar  responses  were  made  by  most  of  the 
other  states. 


FEDERAL  MEASURES  EXCITE  ALARM.      129 

to  serve  the  purpose  of  their  day  and  time.  Jefferson  was 
elected  President.  He  called  his  election  a  revolution.  He 
^said  "  the  Constitution  was  saved  at  its  last  gasp."  He  no 
doubt  thought  so. 

While  history  recognizes  the  invaluable  service  which  the 
federal  party  rendered  the  nation  during  the  administrations 
of  Washington  and  the  elder  Adams,  it  must  admit  that  the 
accession  of  Jefferson  was  tamely  and  fortunate.  The  Federal- 
ists met  the  opportunity  and  demands  of  the  early  formative 
age  of  the  republic.  Washington  and  Adams  seized  the  in- 
fant government  with  resolute  hands  and  infused  into  it  the 
vigor  and  force  of  their  own  strong  natures.  Washington, 
especially,  found  in  the  Constitution  as  expounded  by  the 
genius  of  Hamilton  the  warrant  for  all  necessary  power. 
Hamilton  was  not  the  adviser  of  Adams.  Adams  was  jealous 
of  Hamilton's  leadership  and  influence  ;  and  Hamilton,  though 
he  respected  the  integrity  and  ability  of  Adams,  could  not 
conceal  his  contempt  for  the  whimsical  bitterness  which  flecked 
the  real  greatness  of  the  grand  old  leader  of  the  revolutionary 
patriots.  The  advisers  of  Adams  expanded  the  constitutional 
powers  of  the  government  far  beyond  the  limits  which  Hamil- 
ton advised.  "  Where,"  said  Jefferson  in  a  tone  of  alarm, 
which  we  may  believe  was  sincere,  "  does  all  this  tend,  if  not 
to  overthrow  the  republic  and  establish  a  monarchy  ?  "  He 
designated  the  Federalists  as  "Monarchists."  He  had,  at 
least,  apparent  reason  to  fear  the  gradual  development  of  the 
government  into  an  anti-republican  power. 

By  the  Constitution  "  the  executive  power  "  is  vested  in  the 
President.  In  the  case  of  legislative  power  the  words  are, 
*'  All  legislative  powers  herein  granted,"  but  the  grant  of  ex- 
ecutive power  is  not  thus  qualified.  The  President  is  com- 
mander-in-chief of  the  army  and  navy.  He  makes  treaties  by 
and  with  the  advice  and  consent  of  the  Senate,  and  appoints 
ambassadors,  ministers,  judges,  and  other  high  functionaries. 
With  an  obedient  and  submissive  Congress  what  might  not  an 
ambitious  and  unscrupulous  President  dare  to  do  ?  He  has 
the  undefined  power  to  take  care  that  the  laws  shall  be  faith- 
fully executed.  The  alien  and  sedition  laws  were  samples  of 
the  laws,  and  the  prosecutions  under  the  sedition  laws  showed 


130  CONSTITUTIONAL  HISTORY. 

what  might  be  done  in  executing  them.  With  our  century  of 
experience,  we  regard  these  powers  in  the  light  of  the  prudent 
way  in  which  they  are  usually  exercised,  but  Jefferson  and 
his  party  did  not  enjoy  such  a  satisfactory  light.  They  had 
seen  a  President  send  an  army  into  Pennsylvania  to  suppress 
an  uprising  against  an  odious  excise  tax.  They  saw  a  great 
national  bank  wielding  the  moneyed  power  of  the  nation,  and 
the  nation  itself  in  the  possession  of  an  imperial  revenue. 
They  saw  the  nation  hostile  to  republican  France,  and  friendly 
to  monarchical  England.  They  saw  that  the  government  was 
stronger  than  the  people  and  prompt  to  suppress  liberty  of 
speech  and  of  the  press,  unless  attuned  to  chant  its  praises. 
They  saw  in  the  administrations  of  Washington  and  Adams  a 
pomp  and  ceremony  that  took  on  some  of  the  forms  of  kingly 
courts.  True  it  was  that  the  country  was  prosperous,  that  the 
government  had  brought  in  order,  and  honor,  and  stability  ; 
had  settled  disputes  with  foreign  powers  and  with  Indian 
tribes;  had  regulated  commerce;  had  counteracted  every 
effort  to  break  up  the  new  Union  ;  and  had  placed  the  govern- 
mental machinery  in  admirable  working  order.  But  they  felt 
that  in  proportion  to  the  growth  of  the  nation  there  was  a  de- 
crease in  the  power  and  rights  of  the  states  and  of  the  people. 

Under  the  lead  of  Jefferson  the  people  rose  and  placed  him 
in  power.  He  himself  subsequently  wrote,  "  The  contests  of 
that  day  were  contests  of  principle  between  the  advocates  of 
republican  and  those  of  kingly  power."  Had  he  said  the 
contests  were  between  the  advocates  of  state  and  of  national 
power  he  would  have  been  more  nearly  right.  The  Federal- 
ists feared  the  states.  Hamilton  wrote  in  1792,  "  I,  myself, 
am  affectionately  attached  to  the  republican  theory  and  de- 
sire to  demonstrate  its  practical  success.  But  as  to  state  gov- 
ernments, if  they  can  be  circumscribed  consistently  with  pre- 
serving the  nation,  it  is  well ;  and  if  all  states  were  of  the  size 
of  Connecticut,  Maryland,  or  New  Jersey,  all  would  be  right. 
But  as  it  is,  I  seriously  apprehend  that  the  United  States  will 
not  be  able  to  maintain  itself  against  their  influence.  Hence 
I  am  disposed  for  a  liberal  construction  of  the  powers  of  the 
general  government." 

It  should  be  borne  in  mind  that  the  Federalists  in  power 


FEDERAL  MEASURES  EXCITE  ALARM.      131 

were  charged  with  responsibility  under  new  and  possibly 
dangerous  conditions  ;  that  they  were  men  of  ability  and  had 
the  courage  of  their  convictions  ;  they  felt  the  need  of  the  new 
government  for  nerve,  money,  and  power,  and  they  contributed 
these  to  the  best  of  their  ability.  They  despised  their  polit- 
ical enemies  as  malcontent  agitators,  lacking  patriotism,  cour- 
age, and  sincerity,  and  they  treated  them  as  mischief-makers, 
fit  only  to  be  suppressed.  They  did  not  do  them  justice, 
though  they  thought  they  did  so. 

When  Jefferson  came  into  power  he  paid  his  tribute  to  the 
wisdom  of  the  Federalists  by  allowing  the  federal  machinery 
of  government  to  run  on  as  he  found  it  appointed  to  do.  It 
was  the  best  thing  he  could  do.  The  alien  and  sedition  acts 
expired.  He  devised  no  new  methods,  and  therefore  none  to 
oppress  the  people.  Certainly  under  him  there  was  no  cause 
to  fear  any  doubtful  assumption  of  arbitrary  power. 

That  the  Anti-Federalists  really  believed  that  the  Federal- 
ists entertained  the  purposes  they  imputed  to  them,  we  are 
assured  by  President  Monroe.  In  1817  he  wrote  to  Andrew 
Jackson :  — 

"That  some  of  the  leaders  of  the  federal  party  entertained  prin- 
ciples unfriendly  to  our  system  of  government,  I  have  been  thoroughly 
convinced;  that  they  meant  to  work  a  change  in  it  by  taking  advan- 
tage of  favorable  circumstances,  I  am  equally  satisfied.  It  happened 
that  I  was  a  member  of  Congress  under  the  confederation  just  be- 
fore the  change  made  by  the  adoption  of  the  present  Constitution, 
and  afterwards  by  the  Senate,  beginning  shortly  after  its  adoption. 
In  these  stations  I  saw  indications  of  the  kind  suggested.  .  .  .  No 
daring  attempt  was  ever  made  because  there  was  no  opportunity  for 
it.  I  thought  that  Washington  was  opposed  to  their  schemes,  and  not 
being  able  to  take  him  with  them  that  they  were  forced  to  work,  in 
regard  to  him,  underhanded,  using  his  name  and  standing  with  the 
nation,  as  far  as  circumstances  permitted,  to  serve  their  purposes. 
The  opposition,  which  was  carried  on  with  great  firmness,  checked  the 
career  of  this  party  and  kept  it  within  moderate  limits.  Many  of  the 
circumstances  on  which  my  opinion  is  based  took  place  in  debate  and 
in  society,  and  therefore  find  no  place  in  any  public  document ;  I  am 
satisfied,  however,  that  suflficient  proof  exists,  founded  on  facts  and 
opinions  of  distinguished  individuals,  which  became  public,  to  justify 
that  which  I  had  formed.     My  candid  opinion  is  that  the  dangerous 

f!  UNIVEES^Tl 

V  ^..     0^ .JL  / 


132  CONSTITUTIONAL   HISTORY. 

purposes  to  which  I  have  adverted  were  never  adopted,  if  they  were 
known,  especially  in  their  full  extent  by  any  large  portion  of  the 
federal  party,  but  were  confined  to  certain  leaders,  and  principally 
to  the  eastward." 

General  Washington,  however,  said  he  did  not  think  that 
there  were  at  any  time  a  dozen  well-informed  men  in  the 
country  who  wished  a  monarchy  to  be  established. 

Another  fact  should  be  noticed  in  passing  judgment  upon 
the  actions  and  motives  of  the  federal  party.  Side  by  side 
with  the  establishment  and  development  of  our  government 
was  exhibited  the  astonishing  experiment  of  republican  gov- 
ernment in  France.  Its  experience  then  seemed  to  be  a 
mournful  one.  The  ten  years  of  its  operation,  closing  with 
the  last  century,  seemed  to  exhibit  the  utter  incapacity  of  the 
people  for  self-government.  There  could  be  no  doubt  of  the 
passionate  devotion  of  that  people  to  liberty,  their  heroic 
courage,  their  willingness  to  make  extraordinary  sacrifices,  or 
their  military  strength  and  skill ;  but  there  was  a  melancholy 
failure  of  capacity  to  establish  and  maintain  any  government 
which  could  accomplish  the  results  which  all  desired.  While 
Adams  was  yet  President  and  the  federal  party  at  the  height 
of  its  power  here,  every  semblance  of  republican  rule  in  France 
was,  with  the  joyful  acclaim  of  the  people,  prostrated  before 
Napoleon,  in  whom  absolute  power  and  despotism  were  incar- 
nate. It  was  not  a  happy  circumstance  for  us  that  the  gov- 
ernment of  the  people  by  the  people  seemed  to  be  so  pitiable 
a  failure  in  France. 

Our  federal  Jeaders  never  professed  much  sympathy  with 
the  people.  While  they  thought  they  were  fit  to  confer  power, 
they  did  not  think  them  fit  to  exercise  it.  They  believed 
them  too  ignorant,  too  fickle,  and  too  easily  misled,  to  be  in- 
trusted with  the  use  of  governmental  power.  Hence  their 
policy  was  to  keep  them  well  in  hand,  to  have  them  look  upon 
the  government  and  its  officers  with  respect  and  deference, 
and  to  be  happy  if  they  were  permitted  to  make  a  choice  of 
superiors,  but  not  to  entertain  the  thought  of  assuming  to  be 
equal  with  them.  The  sedition  laws  were  the  weapon  by 
which  the  presumption  to  criticise  too  freely  the  government 
or  its  officers  was  to  be  awed  into  silence.     The  Federalists 


DOWNFALL  OF   THE   FEDERAL  PARTY.  133 

did  not  gauge  aright  the  new  era  which  was  about  to  dawn. 
The  American  people  had  never  been  anything  more  than 
nominal  subjects  of  a  king.  They  h?id  in  reality  always  been 
freemen,  and  under  the  lead  of  Jefferson  they  were  not  slow 
to  see  that  they  had  the  same  right  to  participate  in  the  na- 
tional government  which  they  had  always  enjoyed  in  their 
town  meetings  and  local  assemblies.  They  had  not  been  sub- 
jected to  the  centuries  of  serfdom  which  had  abased  the  French 
peasant,  and  which  made  the  gift  of  freedom  so  strange  a 
thing  that  he  did  not  know  how  to  use  it.  The  pomp  and 
ceremonies  of  royalty  could  not  be  transplanted  to  this  conti- 
nent. Indeed,  so  slight  was  their  hold  here  that  with  less  than 
the  wave  of  his  hand  Jefferson  swept  them  all  away,  and  with 
them  all  the  forms  of  dress  by  which  the  old  school  gentleman 
had  long  been  wont  to  assert  his  social  superiority  over  the 
ordinary  citizen.^ 

The  federalist  party  never  again  came  into  power.  For 
the  sixty  years  following  the  inauguration  of  Jefferson  the 
prevailing  party  in  the  country,  by  whatever  name  it  was 
called,  was  largely  dominated  by  the  Jeff'ersonian  principle. 
That  principle  may  be  expressed  thus,  "  We  are  governed 
too  much,  let  us  alone."  The  nation  existed,  but  it  was  the 
states  that  grew  great.  The  national  power  was  feebly  as- 
serted. The  national  coherence  was  not  firm.  Dissolution 
and  disunion  were  constant  spectres,  to  be  averted,  not  by  the 
national  strength,  but  by  the  national  concession.  I  shall 
show  hereafter  that  the  Supreme  Court  of  the  United  States 
grew  to  be  great,  but  every  other  department  failed  to  de- 
velop into  anything  like  a  dominant  and  controlling  factor  in 
the  nation's  life.  The  Constitution  was  so  construed  in  times 
of  peace  as  to  stand  constantly  in  the  way  of  everything  ex- 

1  It  may  be  worth  while  to  record  that  the  so-called  gentleman  who  paid  his 
respects  to  Lady  Washington,  as  she  was  frequently  called,  wore  a  very  differ- 
ent costume  from  the  dress  suit  with  which  we  are  familiar.  His  hair  was 
powdered,  and  a  queue  or  pigtail  fell  between  his  shoulders.  He  wore  a  small 
cap  of  red  velvet  over  one  of  white  cambric,  the  latter  being  so  adjusted  as  to 
form  a  border  of  two  inches  around  the  velvet  cap.  A  gown  of  blue  damask 
lined  with  silk,  a  white  stock,  a  white  satin  vest  embroidered,  black  satin 
breeches,  uniting  about  the  knees  with  white  silk  stockings,  and  red  morocco 
slippers  with  broad  silver  buckles,  made  him  presentable.  Jefferson  changed  all 
this,  not  by  any  order  or  decree,  but  because  he  did  not  adopt  or  encourage  it. 


134  CONSTITUTIONAL  HISTORY. 

cept  the  merely  routine  work.  Great  struggles  and  great 
debates  there  were  in  Congress,  but  as  a  general  rule  the  do- 
nothing  policy,  both  at  home  and  abroad,  prevailed.  When- 
ever any  question  arose  between  the  nation  and  the  states,  the 
states  usually  had  their  power  and  jurisdiction  conceded,  ex- 
cept, indeed,  when  the  question  was  brought  into  the  Supreme 
Court.  The  nation  insensibly  and  steadily  grew  under  the 
influence  of  the  court.  The  truth  is  that  under  our  system  of 
government  the  state  government  usually  fully  responds  to 
the  necessary  governmental  requirements  of  the  citizen  and 
satisfies  them,  and  there  is  seldom  any  need  of  national  action. 
It  was  no  doubt  true,  therefore,  that  in  the  earlier  history  of 
the  nation,  after  the  general  government  was  happily  estab- 
lished, the  less  it  obtruded  itself  upon  the  people  the  better. 
Certain  it  is  that  after  its  sixty  years  of  Jefferson ian  doze,  it 
awoke  strong,  and  vigorous,  and  resolute  enough  to  put  down 
the  rebellion  which  threatened  its  existence. 

In  the  election  of  1800,  Jefferson  and  Burr  were  the  candi- 
dates of  the  anti-federal  party,  and  Adams  and  Charles  C. 
Pinckney  of  the  Federalists.  As  the  Constitution  then  was, 
the  candidate  receiving  the  highest  number  of  votes  became 
President,  and  the  candidate  receiving  the  next  highest  Vice- 
President.  Jefferson  and  Burr  received  a  majority  over 
Adams  and  Pinckney,  but  themselves  received  an  equal  num- 
ber, and  the  choice  of  President  and  Vice-President  devolved 
upon  the  House  of  Representatives.  The  Anti-Federalists 
had  intended  that  Jefferson  should  be  President,  and  Burr 
Vice-President,  but  such  was  the  hatred  of  the  Federalists  to- 
ward Jefferson  that  many  of  them  determined  that  Burr 
should  be  elected  President  if  possible.  Thirty-five  ballotings 
were  had  without  result.  On  the  thirty-sixth  ballot  Jeffer- 
son was  elected.  This  result  was  due  to  Hamilton.  His  in- 
fluence with  the  Federalists  was  great.  He  said :  "  If  t;here_is 
ajpan  \n  the  world  I  ought  to  hate  it  is  Jefferson,  but  the 
public  good  must  be  paramount  to  every  private  considera- 
tion." He  said  that  Burr  was  bad  morally  and  politically, 
and  unfit  to  be  trusted  with  the  presidency.  His  act  of  patri- 
otic fidelity  to  his  country  ultimately  cost  him  his  life. 

This  election  led  to  the  amendment  of  the  Constitution  to 


ACQUISITION  OF  LOUISIANA.  135 

the  effect  that  the  electors  should  designate  by  their  votes 
one  person  for  President  and  another  for  Vice-President. 
This  amendment,  though  not  intended  to  change  the  original 
scheme  of  the  Constitution,  did  materially  change  it.  Under 
the  original  plan  one  candidate  would  be  taken  from  the 
North  and  the  other  from  the  South ;  thus  both  sections  had 
an  equal  chance  to  secure  the  President.  As  it  could  not 
be  known  which  one  would  be  chosen,  there  was  less  reason 
to  look  in  advance  to  either  for  the  favors  of  office,  and  hence 
less  reason  for  the  partisan  contests  which  have  occurred 
under  the  present  system. 

The  greatest  act  of  Jefferson's  administratioa  was  ona  which 
he  really  believed  he  had  no  constitutional  power  to  perform. 
This  was  the  acquisition  of  the  Louisiana  territory.  Napoleon 
was  first  consul.  Jefferson  wanted  to  obtain  full  control  of 
the  Mississippi  River.  Napoleon  wanted  money  and  was 
afraid  the  English  would  take  his  territory  away.  Both 
wished  to  bargain,  but  Jefferson  had,  as  he  conceived,  no  con- 
stitutional power.  He  determined,  however,  to  take  the  risk, 
and  obtain  constitutional  sanction  afterwards  if  necessary. 
The  Federalists  never  ceased  to  exclaim  against  his  daring 
violation  of  the  Constitution,  and  they  affected  to  consider  it 
the  baser  wrong,  since  Jefferson  was  professedly  so  strict  a 
constructionist.  The  argument  in  support  of  the  alleged  un- 
constitutionality of  the  purchase  was :  The  Constitution  is 
silent  upon  the  subject  of  the  acquisition  of  territory,  and 
therefore  the  power  does  not  exist.  The  modern  opinion 
is  that  the  argument  was  unsound ;  that  the  power  to  make 
treaties,  and  the  power  of  Congress  to  provide,  if  necessary, 
the  purchase  money,  both  uniting  in  the  act  of  purchase, 
bring  it  within  constitutional  competency. 

This  acquisition  of  the  Louisiana  territory  was  of  greater 
importance  than  either  Jefferson  or  Napoleon  dreamed.  The 
territory  can  support  more  population  and  produce  greater 
wealth  than  France  herself. 

The  Jay  treat}?^  expired  in  1804.  France  and  England  were 
still  at  war  with  each  other,  and  the  usual  outrages  upon  our 
commerce  and  upon  our  seamen  continued.  France  wanted 
our  breadstuffs,  and  the  high  prices  tempted  our  traders  to 


^ 


136  CONSTITUTIONAL  HISTORY. 

supply  them.  England  had  nearly  driven  the  French  from 
the  seas,  and  to  starve  the  people  into  subjection  was  part  of 
her  policy.  In  1806  and  1807  she  declared  the  French  ports 
blockaded.  The  French  retaliated  by  declaring  the  English 
ports  blockaded,  and  also  all  the  ports  of  the  powers  allied  with 
England  against  France.  The  result  was,  the  American  ships 
were  in  danger  of  capture,  no  matter  to  what  European  port 
they  sailed.  Jefferson  remonstrated  against  this  injustice,  but 
his  remonstrances  were  without  result.  The  American  trade 
was  principally  carried  on  by  the  Northern  States.  France 
had  so  little  naval  strength  that  the  northern  traders  saw 
that  the  best  policy  for  them  to  pursue  was  to  disregard  the 
French  blockade  of  the  English  ports,  and  carry  on  trade  as 
usual  with  England,  and  thus  induce  her  to  relax  her  block- 
ade of  the  French  ports  in  our  favor.  Besides,  the  Americans 
could  have  made  reprisals  upon  France,  which  would  have 
conciliated  the  English.  But  the  northern  traders  were  mostly 
Federalists,  and  were  therefore  suspected  of  being  friendly  to 
England  and  hostile  to  France,  while  Jefferson  haled  England 
and  loved  France. 

Jefferson  concluded  to  recommend  an  embargo  on  all  Amer- 
ican shipping  until  one  or  both  the  belligerents  should  suspend 
their  obnoxious  blockades.  At  this  time  Spain  was  an  ally  of 
France.  She  disputed  our  boundaries,  menaced  our  frontier, 
and  denied  our  right  to  the  possession  of  Mobile.  She,  too, 
joined  in  the  spoliation  of  our  commerce.  The  embargo  rec- 
ommended by  Jefferson  was  authorized  by  Congress,  and  the 
result  was  that  English  and  French  ships  could  not  enter  our 
ports,  and  our  own  ships  could  not  leave  them.  Practically 
this  did  not  much  affect  England.  She  sent  her  goods  into 
this  country  through  the  Canadian  ports.  What  American 
goods  were  exported  went  out  through  Canada,  or  in  viola- 
tion of  the  embargo.  New  England  ships  began  to  rot  in 
their  ports,  and  New  England  people  began  to  turn  their  at- 
tention to  manufactures.  After  fourteen  months  of  experi- 
ence under  the  embargo,  Congress  repealed  the  act  and  sub- 
stituted the  non-intercourse  act.  This  act  allowed  trade  with 
some  foreign  countries  but  forbade  it  with  England  and 
France.    This  only  partly  relieved  the  distress,  and  did  not  at 


WAR   OF   1812.  137 

all  satisfy  the  New  England  shippers.  The  Federalists  now- 
unearthed  the  Virginia  and  Kentucky  Resolutions,  and  denied 
the  right  of  the  nation  to  adopt  either  embargo  or  non-inter- 
course measures. 

An  embargo  is  simply  a  protection  to  your  own  ships  until 
you  can  get  ready  to  fight.  You  order  them  into  port  lest  the 
enemy  capture  them,  before  you  can  otherwise  protect  them. 
But  Jefferson  ordered  them  into  port,  and  did  not  get  ready 
to  defend  them,  and  Madison  followed  his  example.  Their 
idea  was  that  if  France  and  England  could  not  trade  in  our 
ports  they  would  come  to  reason.  It  was  a  mistake.  It 
practically  left  England  to  do  the  trading  for  the  whole  earth. 
We  lost  trade,  time,  and  ships. 

James  Madison  became  President  in  1809.  A  treaty  was 
negotiated  with  England  through  her  minister  which  prom- 
ised relief  to  American  shipping,  and  Madison  suspended 
the  non-intercourse  act.  But  England  refused  to  ratify  the 
treaty,  alleging  that  her  minister  had  exceeded  his  instruc- 
tions. Madison  then  restored  the  non-intercourse  act.  Mean- 
while France  pretended  to  have  withdrawn  her  blockade  de- 
cree, but  there  did  not  appear  to  be  such  evidence  of  it  as 
was  satisfactory  to  England,  and  she  refused  to  withdraw 
her  decrees  of  blockade.  The  government  still  had  faith  in 
France,  and  suspended  the  non-intercourse  act  as  to  her  and 
left  it  remaining  as  to  England.  The  administration,  weary 
of  its  miserable,  shifting  embargo  and  non-intercourse  policy, 
was  now  strongly  in  favor  of  war  with  England.  There  was 
cause  enough,  if  we  had  been  in  condition  to  fight.  England 
had  impressed  our  seamen,  infringed  upon  our  maritime  juris- 
diction, disturbed  the  peace  of  our  coasts,  established  paper 
blockades  to  our  injury,  violated  our  neutral  rights,  and  de- 
nied every  appeal  made  by  us  to  her  for  justice.  On  the 
other  hand  she  maintained,  not  without  some  color  of  justice, 
that  we  had  waged  war  against  her  in  disguise.  She  had 
crippled  France  by  destroying  her  navy,  but  our  ships  were 
ready  to  furnish  her  with  every  supply  of  provisions  and 
munitions  of  war  that  she  could  pay  us  for.  England  said 
that  if  the  United  States  had  withheld  these  supplies,  France 
would  have  sued  for  peace  years  before. 


138  CONSTITUTIONAL   HISTORY. 

Congress  finally  declared  war  against  England  on  the  18th 
day  of  June,  1812.  It  is  a  remarkable  fact  that  five  days 
after  that  date  England  withdrew  her  Orders  in  Council  estab- 
lishing the  blockade.  But  the  war  party  in  the  country  had 
been  gathering  force  and  audacity  so  long  that  Madison,  who 
was  a  peace  man  at  heart  and  dreaded  the  war,  was  forced 
to  carry  it  on.  The  ground  upon  which  it  was  insisted  upon 
was  the  unjust  pretence  of  England  to  search  our  ships  and 
impress  our  seamen.  As  it  was  difficult  to  distinguish  an 
English  from  an  American  sailor,  it  happened  that  many 
American  sailors  were  impressed  under  the  false  pretence 
that  they  were  Englishmen.  The  Americans  claimed  that, 
whether  English  or  American,  the  nationality  of  the  flag  de- 
termined the  nationality  of  the  crew. 

The  war  was  characterized  by  the  peace  party,  and  with 
great  justice,  as  "  rushing  headlong  into  difficulties  with  lit- 
tle calculation  of  the  means,  and  little  concern  for  the  con- 
sequences." The  country  was  not  well  prepared  for  it.  It 
lasted  two  years  and  a  half.  It  was  discouraging  by  land, 
but  brilliant  on  the  seas.  Fortunately  for  us  the  allied  armies 
of  Europe  overthrew  Napoleon  in  April,  1814,  and  sent  him 
to  Elba.  Peace  seemed  to  be  reestablished  in  Europe.  Eng- 
land was  weary  of  war  after  so  many  years  of  struggle,  and 
was  disposed  to  make  peace  with  us.  This  disposition  was 
stimulated  by  the  apprehension  that  Russia  would  offer  to 
interpose  as  a  mediator.  Russia  was  friendly  to  us,  and  Eng- 
land did  not  desire  to  have  her  sit  in  judgment  upon  her  pre- 
tensions to  contraband,  blockade,  and  impressment  rights. 
Nor  did  she  want  to  be  rude  to  her  ally  and  neighbor.  She 
therefore  made  more  haste  to  negotiate  with  us.  But  we 
were  not  in  a  condition  to  insist  upon  rigid  terms,  and  were 
glad  to  get  out  of  the  war  without  saying  anything  about  the 
claims  we  went  to  war  for. 

After  the  date  of  the  treaty  of  peace.  General  Jackson,  be- 
fore he  heard  of  it,  won  the  brilliant  victory  of  New  Orleans. 
This  victory  vindicated  American  valor  and  prowess,  and  our 
people  were  proud  and  happy.  Although  nothing  was  said 
in  the  treaty  about  the  impressment  of  our  seamen,  the  event 
proves  that  it  was  not  necessary  to  say  anything.     During 


THE  HARTFORD  CONVENTION.  139 

the  seventy-three  years  that  have  since  elapsed,  not  one 
American  seaman  has  been  impressed  by  England,  or  by  any 
other  foreign  nation. 

Although  tlie  federal  party  had  given  place  in  the  nation 
to  the  anti-federal  or  republican  party,  it  remained  strong 
in  New  England  until  the  war  closed.  The  party  bitterly 
opposed  the  war.  It  hated  Mr.  Jefferson  and  his  party. 
His  restrictive  and  really  unwise  policy,  commencing  in  1806 
and  continuing  until  the  war  was  declared  in  1812,  was  dis- 
astrous to  the  shipping  and  commercial  interests  of  New 
England.  The  Federalists  protested  that  their  interests  were 
ruined  under  the  pretence  of  protecting  them.  They  put 
obstacles  in  the  way  of  the  prosecution  of  the  war.  The  gov- 
ernors of  Massachusetts  and  Connecticut  denied  the  right  of 
the  President  to  call  out  the  militia  of  those  states.  They 
denied  the  right  of  the  federal  officers  to  command  the  mili- 
tia when  called  out.  They  denied  that  the  President  had 
the  right  to  decide  whether  the  exigency  existed  which  gave 
him  the  constitutional  right  to  call  out  the  militia,  and 
claimed  the  right  to  decide  themselves.  They  said  if  they 
could  control  their  own  militia  they  could  repel  any  invasion 
without  the  help  of  the  United  States.  The  administration 
practically  took  them  at  their  word,  and  left  New  England  to 
take  care  of  her  own  coasts  and  ports. 

It  was  under  the  exasperation  caused  by  this  state  of  affairs 
that  the  famous  Hartford  Convention  assembled  in  December, 
1814.  Delegates  were  sent  from  all  the  New  England  States. 
Those  from  Massachusetts,  Connecticut,  and  Rhode  Island 
were  sent  in  pursuance  of  a  resolution  of  their  legislatures ; 
those  from  Vermont  and  New  Hampshire  were  chosen  by 
local  assemblies.  The  legislature  of  Massachusetts  declared 
that,  "  The  general  objects  of  the  proposed  conference  are, 
first,  to  deliberate  upon  the  dangers  to  which  the  eastern  sec- 
tion of  the  Union  is  exposed  by  the  course  of  the  war,  and 
which  there  is  too  much  reason  to  believe  will  thicken  around 
them  in  its  progress,  and  to  devise,  if  practicable,  means  of 
securit}^  and  defence,  which  may  be  consistent  with  the  pres- 
ervation of  their  resources  from  total  ruin,  and  adapted  to 
their  local  situation,  mutual  relations  and  habits,  and  not  re- 
pugnant to  their  obligations  as  members  of  the  Unionr 


140  CONSTITUTIONAL  HISTORY. 

This  convention  greatly  alarmed  the  administration.  Its 
sessions  were  secret.  That  its  members  hated  the  adminis- 
tration and  the  war,  and  regarded  the  connection  of  New 
England  with  the  Union  as  an  evil  to  be  deplored,  there  is 
scarcely  room  for  doubt.  Nevertheless,  judging  of  their  in- 
tentions by  the  resolutions  they  adopted,  it  must  be  admitted 
that  they  stopped  far  short  of  advising  secession.  They  rec- 
ommended to  the  legislatures  of  the  several  states  to  adopt 
measures  to  protect  their  citizens  from  the  operation  and  ef- 
fect of  the  acts  subjecting  the  militia  and  citizens  to  drafts, 
conscriptions,  or  impressments,  not  authorized  by  the  Consti- 
tution of  the  United  States ;  also  that  the  government  of  the 
United  States  be  requested  to  consent  to  an  arrangement  by 
which  the  New  England  States  might  be  permitted  to  defend 
themselves,  and  for  that  purpose  keep  their  proper  proportion 
of  the  taxes  paid  by  such  states,  and  that  these  states  take 
proper  measures  for  their  own  defence  against  the  enemy. 
The  convention  also  asked  that  the  Constitution  of  the  United 
States  be  amended,  by^  providing  that  slaves  should  not  be 
reckoned  in  apportioning  taxes  and  representatives ;  that  no 
new  state  be  admitted  to  the  Union  without  the  consent  of 
two  thirds  of  both  houses  ;  that  no  embargo  should  exist  for 
more  than  sixty  days ;  that  without  the  concurrence  of  two 
thirds  of  Congress,  commercial  intercourse  with  foreign  na- 
tions should  not  be  restricted,  nor  war  declared ;  that  the 
President  should  not  be  eligible  to  reelection ;  and  that  for- 
eign-born citizens  should  not  be  allowed  to  hold  oflBce.  In 
conclusion  they  advised  that  another  convention  be  held  the 
following  June,  if  the  present  recommendations  should  not  be 
heeded. 

While  this  convention  kept  within  the  legal  rights  of  free 
citizens  of  the  United  States,  its  threat  to  convene  another 
convention  was  intended  to  intimidate  the  government.  For- 
tunately peace  was  declared  within  a  few  days  after  it  ad- 
journed. It  had  no  occasion  to  reassemble.  However  hon- 
estly mistaken  in  their  action  its  members  may  have  been, 
they  suffered  the  political  execration  of  their  own  generation, 
and  must  receive  the  condemnation  of  history.  When  our 
country  is  engaged  in  a  life  and  death  struggle  with  its  enemy. 


MONROE'S  ADMINISTRATION.  141 

however  inexcusably  it  may  have  rushed  into  it,  duty,  morality, 
and  patriotism  alike  command  that  we  do  not  aid  the  enemy, 
and  embarrassment  of  our  own  country  is  aid  to  the  enemy. 

With  the  return  of  peace,  its  blessings  followed  in  rich 
abundance.  The  nation  seemed  suddenly  to  have  become 
great,  and  the  Union,  so  sorely  threatened  during  these  weary 
years,  became  the  object  of  universal  pride  and  devotion. 
Party  spirit  relaxed.  The  federal  party  was  biiried  in  the 
grave  of  the  Hartford  Convention.  The  British  faction  and 
the  French  faction  disappeared  with  the  troubles  which  nursed 
them.  Not  a  cloud  of  danger  darkened  the  national  sky. 
Everybody  was  willing  to  join  in  the  proper  provision  for  the 
waste  and  cost  of  the  war.  Even  the  republican  party  con- 
sented to  surrender  its  prejudices,  and  to  charter  a  new  na- 
tional bank ;  the  charter  of  the  old  one  having  expired  before 
the  war.  The  war  which  had  destroyed  the  shipping  interests 
had  developed  the  manufacturing  interests,  and  since  a  greater 
revenue  was  needed,  the  tariff  was  adjusted  to  protect  these 
infant  industries.  Strange  to  say,  South  Carolina,  led  by 
Calhoun,  urged  the  protective  tariff,  and  New  England,  led 
by  Daniel  Webster,  resisted  it. 

James  Monroe  succeeded  Madison  as  President  in  1817. 
He  was  a  thorough  disciple  of  the  school  of  Madison  and 
Jefferson.  He  had  had  a  large  experience  in  public  affairs, 
dating  from  the  confederate  Congress.  He  had  no  capacity 
for  the  great  problems  of  political  science  over  which  his 
teachers,  Madison  and  Jefferson,  delighted  to  ponder,  but  for 
the  practical  administration  of  a  government  already  estab- 
lished upon  a  solid  basis,  he  was  far  the  superior  of  either. 
While  the  presidency  detracts  from  the  just  fame  of  Madison 
and  Jefferson,  it  suffices  to  preserve  that  of  Monroe  from 
oblivion.  His  two  administrations  were  of  great  tranquillity. 
Parties  so  far  died  out  that  no  division  existed  in  the  popular 
vote  upon  his  second  election.  He  then  received  all  the  elec- 
toral votes  save  one.  The  constitutional  questions  which  agi- 
tated his  administration  were  chiefly  confined  to  the  power  of 
the  national  government  to  build  great  national  roads  about  tI^ 
the  country.  The  West  began  to  be  felt  as  a  factor  in  the 
nation.     It  was  before  the  era  of  railroads  and  steamboats. 


142  CONSTITUTIONAL   HISTORY. 

It  was  thought  to  be  wise  policy  to  bind  the  country  together. 
Business  would  thrive ;  states  would  be  brought  closer  by 
great  national  highways;  over  them  foreign  immigrants  and 
our  own  people  could  move  on  towards  the  wilderness  and 
the  prairies ;  the  mails  could  be  carried,  and  troops  marched 
if  there  should  be  need.  Many  schemes  of  this  kind  were 
proposed  ;  the  administration  favored  them,  but  denied  the 
constitutional  power.  Internal  improvements  became  the 
rallying  cry  of  new  parties.  The  great  Cumberland  Road, 
which  stretched  across  the  mountains  from  the  Potomac  to 
the  Ohio  River,  was  begun  in  1806.  It  was  the  parent  of  in- 
numerable schemes  to  build  roads  at  the  expense  of  the  nation. 
Mr.  Monroe  in  1822  vetoed  the  bill  making  appropriations 
for  repairs  of  this  road,  assigning  as  the  ground  of  his  veto 
the  unconstitutionality  of  the  laws  under  which  the  road  was 
made  and  maintained. 

The  Constitution  provides  that  "  no  state,  without  the  con- 
sent of  Congress,  shall  lay  any  duty  of  tonnage."  Every 
state  at  the  time  of  the  adoption  of  the  Constitution  had  a 
sea-coast  and  at  least  one  sea-port  of  more  or  less  importance. 
The  early  practice  under  the  Constitution  was  for  each  state, 
in  order  to  improve  its  harbors,  sea-ports,  or  navigable  rivers, 
to  impose  some  duty  of  tonnage,  and  for  Congress  to  pass  an 
act  consenting.  Congress,  however,  from  the  beginning 
steadily  appropriated  money  for  light-houses  and  public  piers. 
The  state  was  required  to  cede  to  the  United  States  exclusive 
jurisdiction  over  them.  The  admission  of  states  having  no 
sea-port  was  finally  followed  by  complaints  that  it  was  unfair 
for  the  sea-port  states  to  provide  for  internal  improvements 
by  levying  duties  which  the  inland  consumer  would  have  ulti- 
mately to  pay,  while  the  inland  states  must  make  their  neces- 
sary internal  improvements  at  their  own  expense.  The  Cum- 
berland Road  was  the  first  concession  to  this  complaint.  Jef- 
ferson, Madison,  and  Monroe  denied  that  Congress  had  any 
power  to  authorize  and  maintain  these  roads  upon  the  terri- 
tory of  a  state  without  the  consent  of  the  state.  John  Quincy 
Adams  held  the  opposite,  but  Andrew  Jackson  denied  the 
constitutionality  of  such  legislation.  Nevertheless,  Congress, 
by  making  provisions  for  internal  improvements  in  the  appro- 


INTERNAL  IMPROVEMENTS.  143 

priation  bill,  —  a  bill  which  is  generally  so  framed  that  the 
President  cannot  veto  it  without  depriving  the  government 
of  the  means  to  perform  its  functions,  —  succeeded  in  mak- 
ing large  appropriations  for  internal  improvements. 

The  success  of  the  Ekie  Canal  in  the  State  of  New  York, 
and  the  introduction  of  railroads  and  steamboats,  put  an  end 
to  road-building  by  the  nation,  but  meantime  the  improve- 
ment of  harbors  and  rivers  by  the  general  government  was 
foisted  upon  it.  /On  the  3d  day  of  March,  1823,  the  first  act  \ 
for  the  improvement  of  a  harbor  was  passed  by  Congress.  /  It  ^ 
owed  its  origin  to  an  expression  in  Mr.  Monroe's  message 
vetoing  the  Cumberland  Road  bill.  While  he  denied  the 
power  of  Congress  to  assert  any  jurisdiction  in  a  state  over 
a  turnpike  gate,  or  bridge,  and  to  punish  any  one  for  injur- 
ing them  or  for  refusing  to  pay  toll,  because  these  were  the 
domestic  matters  of  the  state,  he  nevertheless  said  that  Con- 
gress had  power  to  appropriate  money  at  its  discretion  for 
objects  of  national  importance,  and  the  President  could  not 
sit  in  judgment  upon  the  selections  of  the  objects  made  by 
Congress.  He  was  clearly  wrong  in  the  last  proposition.  But 
Congress  soon  chose  to  select  harbors  as  the  object  of  the 
national  lavishness,  and  thence  the  extension  to  rivers  was 
easily  made.  In  1846,  President  Polk  vetoed  a  river  and 
harbor  improvement  bill,  and  in  1856  President  Pierce  also 
vetoed  one.  Congress  passed  the  bill  over  his  veto.  This 
was  the  first  instance  in  the  government  under  the  Constitu- 
tion in  which  a  bill  was  passed  over  the  veto  of  the  President. 
Thereafter,  this  kind  of  improvement  fell  into  desuetude  until 
1870,  but  the  public  hunger  for  an  appropriation  was  in  the 
mean  time  somewhat  satisfied  by  the  erection  of  public  build- 
ings, such  as  post-offices,  custom-houses,  and  the  like.  In 
1870  a  river  and  harbor  bill  appropriating  12,000,000  was 
passed,  and  was  approved  by  President  Grant.  The  power 
of  Congress  "  to  regulate  commerce  "  is  now  supposed  to  em- 
brace this  power.  The  public  rapacity  was  now  manifested 
by  the  rising  tide  of  appropriations,  until  in  1883  they  reached 
the  sum  of  $18,700,000.  President  Arthur  vetoed  the  bill, 
but  Congress,  to  its  dishonor,  immediately  passed  it  over  his 
veto.     In  1888  a  bill  appropriating  over  120,000,000  was  al- 


144  CONSTITUTIONAL  HISTORY. 

lowed  to  become  a  law.  It  is  useless  now  to  discuss  the  con- 
stitutional power  of  Congress  to  appropriate  money  for  the  im- 
provement of  rivers  and  harbors,  since  the  congressional  and 
presidential  decisions  are  final  upon  such  a  question ;  but  as 
a  question  of  expediency  and  morality,  in  view  of  the  system 
of  "  log-rolling"  by  which  the  appropriations  are  inflated  and 
carried,  it  is  to  be  regretted  that  the  conservative  construction 
of  Jefferson  and  Madison  should  have  been  departed  from. 
Neither  political  party  has  virtue  enough  to  refuse  the  im- 
proper appropriations  demanded  for  this  purpose. 

In  Monroe's  administration  we  acquired  Florida  from  Spain 
for  the  sum  of  $5,000,000.  By  the  treaty  of  cession  the  Sa- 
bine River  was  described  as  the  boundary  between  Louisiana 
and  the  Spanish  dominions.  It  was  subsequently  alleged  that 
we  thus  gave  away  our  claim  to  Texas,  — a  claim  which  we 
ought  to  have  made  good  under  the  Louisiana  purchase  from 
France. 

In  President  Monroe's  message  of  1828^  the  declaration 
since  famous  as  the  "  Monroe  doctrine  "  was  made. 

The  occasion  for  the  declaration  was  this :  After  the  down- 
fall of  Napoleon,  three  of  the  powers  arrayed  against  him, 
Russia,  Austria,  and  Prussia,  together  with  France,  then  re- 
stored to  monarchy,  formed  what  was  termed  a  *'Holy  Alli- 
ance," to  maintain  the  principle  of  the  legitimacy  of  the  ex- 
isting dynasties.  If  the  principle  should  be  threatened  in 
Europe,  these  powers  promised  armed  interference  to  pro- 
tect it.  This  was  in  1820.  England  had  acquiesced  in  this 
agreement  of  the  Holy  Alliance.  But  in  1823  her  secretary 
of  foreign  affairs  represented  to  our  government  that  Eng- 
land apprehended  that  the  Alliance  entertained  the  project 
of  armed  intervention  to  reduce  the  revolted  Spanish  do- 
minions in  North  and  South  America  to  the  control  of  such 
monarchical  governments  as  the  Alliance  might  dictate.  Eng- 
land preferred  that  the  revolted  dominions  should  remain  in- 
dependent, hoping  to  establish  better  trade  facilities  with  them 
in  their  condition  of  independence  than  if  they  were  controlled 
by  Spain  or  by  the  Holy  Alliance.  Besides,  she  wanted  the 
United  States  to  disclaim  all  intention  of  acquiring  any  of  the 
American  Spanish  states.     Our  government  was  afraid  that 


THE  MONROE  DOCTRINE.  145 

the  Holy  Alliance  would  restore  all  South  America  to  Spain 
and  reinstate  Spanish  dominion  over  Mexico.  President  Mon- 
roe, in  his  message  in  1823,  thereupon  said :  "  We  owe  it  to 
candor  and  to  the  amicable  relations  existing  between  the 
United  States  and  the  allied  powers  to  declare  that  we  should 
regard  any  attempt  on  their  part  to  extend  their  system  to 
any  portion  of  this  hemisphere  as  dangerous  to  our  peace  and 
safety.  With  the  existing  colonies  or  dependencies  of  any 
European  power  we  have  not  interfered,  and  shall  not  inter- 
fere, but  with  the  governments  which  have  declared  their  in- 
dependence and  maintained  it,  and  whose  independence  we 
have  on  great  consideration  and  just  principles  acknowledged, 
we  could  not  view  an  interposition  for  oppressing  them,  or 
controlling  in  any  other  manner  their  destiny  by  any  Euro- 
pean power,  in  any  other  light  than  as  a  manifestation  of  an 
unfriendly  disposition  towards  the  United  States.  .  .  .  The 
American  continents  should  no  longer  be  subjects  for  any  new 
European  colonial  settlement."  This  was  very  bold  doctrine 
foir  the  United  States  to  promulgate.  Compared  with  the 
powers  which  composed  the  Holy  Alliance  our  country  was 
feeble.  But  this  bold  proclamation  commanded  respect.  Of 
course  this  doctrine  is  not  law.,  and  if  any  occasion  should 
arise  for  its  application,  our  government  would  be  governed 
by  the  circumstances,  and  do  what  it  thought  to  be  right. 
Indeed,  it  refused  to  interfere  in  1863,  when  France  placed 
Maximilian  on  the  throne  of  Mexico.  But  then  we  were  en- 
gaged in  our  civil  war,  and  one  war  at  that  time  was  all  we 
could  well  attend  to.  After  the  war  our  government  signified 
to  France  that  the  presence  of  her  troops  in  Mexico  was  dis- 
agreeable. The  troops  were  withdrawn  and  Maximilian  and 
his  empire  perished.  There  is  no  doubt  that  the  Monroe  doc- 
trine asserts  a  policy  which  the  people  of  the  United  States 
would  be  willing  and  prompt  to  sustain  and  enforce,  if  any 
occasion  should  arise  in  which  we  should  feel  justified  in  as- 
serting it. 

10 


LECTURE  VII. 


THE  JACKSON  ERA. 


Bank.  —  Office-holding.  —  Tariff.  —  Nullification.  — Whether 
THE  Constitution  is  a  Compact  between  States,  or  the  Su- 
preme Government  over  the  People  ?  —  Annexation  of  Texas. 
—  Close  of  the  Period  of  Narrow  Construction. 

The  decay  of  old  party  lines,  the  new  interests  of  agrowing 
country,  and  the  ambition  of  younger  statesmen  gave  rise  to 
new  party  divisions.  John  Quincy  Adams  was  Secretary  of 
State  under  Mr.  Monroe.  He  was  originally  a  Federalist,  but 
had  supported  the  late  war  and  was  in  favor  of  internal  im- 
provemeiLts.  He  led  a  new  party  of  Adams  Republicans. 
William  H.  Crawford  was  at  the  same  time  Secretary  of  War. 
He  was  the  leader  of  the  old  line  Republicans,  and  obtained 
the  congressional  caucus  nomination  for  President.  Henry 
Clay  had  also  been  a  Republican,  but  was  now  the  eloquent 
aiid  magnetic  leader  of  a  large  following  who  favored  a  pro- 
tective tariff  and  internal  improvements.  He  expounded  the 
Constitution  in  accord  with  these  measures. 

Andrew  Jackson  had  been  nominally  a  Republican  ;  he  was 
the  hero  of  New  Orleans,  and  of  a  war  against  the  Indians  in 
Florida.  He  relied  more  upon  his  personal  popularity  in  the 
Southwest  than  upon  any  policy  in  civil  affairs.  The  scat- 
tered portions  of  the  old  parties,  which  had  no  distinctive 
theories  of  governmental  policy,  were  greatly  attracted  to  this 
new  character  in  American  politics,  and  they  rallied  around 
him  under  the  name  of  Democrats.  These  four  men  were 
candidates  for  the  presidency  to  succeed  Mr.  Monroe.  When 
the  electoral  votes  were  counted,  Mr.  Jackson  had  99,  Mr. 
Adams  84,  Mr.  Crawford  41,  and  Mr.  Clay  37.  As  no  candi- 
date had  a  majority,  the  election  devolved  upon  the  House  of* 
Representatives,  voting  by  states,  each  state  having  one  vote. 


ANDREW  JACKSON.  147 

Clay  was  the  lowest  in  the  list  of  four,  and  his  name  could 
not  come  before  the  House.  His  friends,  however,  united  with 
those  of  Mr.  Adams,  who  thus  obtained  the  majority  and  be- 
came President.  Mr.  Adams  was  a  man  of  unusual  ability 
and  attainments,  of  impressive  eloquence,  of  great  patriotism, 
and  also  of  great  prejudices  ;  but  his  prejudices  were  usually 
directed  against  the  men  and  measures  that  he  conceived  to  be 
opposed  to  the  welfare  of  the  nation.  His  ideal  of  his  duty  as 
chief  magistrate  was  a  severe  and  noble  one.  He  would  serve 
the  nation  for  the  nation's  welfare,  and  no  considerations  of 
personal  or  party  advantage  would  swerve  him  from  his  sense 
of  the  fit  and  becoming.  His  administration  was  marked  by 
the  excitements  which  attended  the  formation  of  new  political 
combinations,  and  the  struggles  of  contending  rivals  for  future 
supremacy.  With  the  exception  of  the  refusal  of  the  State  of 
Georgia  to  recognize  the  right  of  the  United  States  to  enforce 
treaty  obligations  with  the  Indian  nations  in  that  state  —  of 
which  I  shall  speak  hereafter  —  his  administration  was  wise 
and  happy.  But  the  star  of  Andrew  Jackson  was  in  the  as- 
cendant, and  Adams  retired  at  the  end  of  one  term. 

With  the  accession  of  Jefferson  the  reign  of  the  masses  be- 
gan. Witji  the  accession  of  Jackson  the  masses  placed  one 
of  themselves  in  the  presidency.  All  the  previous  presidents 
had  had  large  experience  in  public  affairs,  and  with  the  ex- 
ception of  Washington,  all  had  been  men  of  high  scholastic 
culture. 

Andrew  Jackson  was  a  curiosity  even  among  American 
politicians.  Our  population  had  been  greatly  swollen  by  im- 
migration. The  native  and  the  immigrant,  who  fled  the  civ- 
ilization of  the  Atlantic  coast  to  carve  out  new  states  from 
the  wilderness  and  prairies  of  the  West,  formed  a  rough, 
brave,  impulsive,  and  generous  people.  Jackson  was  the  prod- 
uct of  this  mixed  civilization.  The  victor  at  New  Orleans 
and  of  many  an  Indian  fight,  he  became  the  hero  of  the  fron- 
tiersmen. He  held  about  the  same  relative  rank  among  the 
statesmen  of  the  age  that  the  dime  novel  of  our  times  holds  in 
our  literature  —  strong  enough  to  capture  an  active  and  un- 
tutored imagination.  He  had  learned  to  read  and  write,  was 
unable  to  make  a  connected  speech,   but  had  an  imposing 


148  CONSTITUTIONAL  HISTORY. 

command  of  short  sentences,  positive,  energetic,  and  denun- 
ciatory. In  pursuit  of  an  end  he  marched  directly  towards 
it,  crushing  obstacles,  seizing  means,  and  compelling  success. 
He  was  patriotic  and  honest  in  his  feeling,  with  a  sense  of 
honor,  somewhat  peculiar,  but  to  which  he  held  as  his  guide, 
though  he  was  liable  to  be  duped  by  the  flatterers  who  in- 
flamed his  prejudices  and  inflated  his  vanity.  His  capacity 
was  small  to  distinguish  between  fair  opposition  and  dishonest 
intrigue,  and  he  hated  a  contention  which  was  conducted  by 
argument  instead  of  blows.  His  daring  and  brilliant  military 
exploits  gave  him  a  national  reputation.  Presidential  nomi- 
nations had  long  been  dictated  by  congressional  caucuses  at 
Washington,  and  popular  sentiment  had  at  last  been  aroused 
to  resist  such  dictation. 

The  frontiersmen  placed  Jackson  in  nomination,  as  their 
tribute  to  their  idol  and  their  protest  against  caucus  dictation. 
The  nomination  was  at  first  regarded  at  the  East  as  the  ex- 
travagance of  the  frontier,  but  the  election  disclosed  that 
Jackson  stood  highest  at  the  polls.  The  division  in  the  elec- 
toral vote  threw  the  election  into  the  House  of  Representa- 
tives, and  John  Quincy  Adams  was  chosen.  But  the  popular 
tide  thenceforth  steadily  rose,  and  at  the  next  election  bore 
Jackson  into  the  presidency.  He  brought  to  the  office  all  the 
faults  and  merits  of  his  qualities.  His  methods  were  irregu- 
lar, his  conceit  unbounded,  but  his  intentions  were  honest  and 
patriotic.  He  was  easily  duped  but  never  intimidated.  He 
was  no  demagogue.  If  he  ever  deceived  the  people  it  was 
because  he  mistook  the  false  for  the  true.  He  administered 
the  government  as  if  it  were  his  personal  estate.  His  admin- 
istration was  a  new  era  in  politics.  He  made  and  destroyed 
statesmen,  characters,  and  institutions,  gave  his  name  to  his 
party,  and  designated  his  successor.  Unwise  and  dangerous 
as  he  was,  there  was  a  certain  majesty  of  heroic  greatness  in 
his  character  that  enabled  him  to  lead  captive  in  his  train 
greater  men  than  himself,  and  to  secure  an  acclaim  of  per- 
sonal admiration  and  devotion,  such  as  writers  of  romance  tell 
us  the  Highland  clansmen  accorded  to  their  warrior  chiefs. 
And  it  must  be  conceded  that  his  weaknesses  and  failings,  his 
passions  and  prejudices,  were  relieved  and  ennobled  by  a  patri- 


THE  RIGHTS  OF  THE  MASSES.  149 

otic  stubbornness,  and  by  a  passionate  devotion  to  the  Union. 
He  was  mercilessly  ridiculed  by  his  enemies,  and  extrava- 
gantly praised  by  his  friends.  With  the  masses  this  praise 
was  sincere ;  but  sycophants  were  not  lacking,  who  bartered 
their  self-respect  for  official  thrift.  It  may  be  well  enough 
to  have  had  one  such  President  as  Jackson,  in  order  to  fix  in 
history  a  typical  picture  of  the  man  whom  the  masses  of  his 
generation  most  delighted  to  honor. 

He  wrought  one  change  as  great  as  if  effected  by  a  consti- 
tutional amendment.  Hitherto  men  had  held  office  under 
executive  appointment,  usually  so  long  as  they  performed 
their  duties  satisfactorily.  But,  under  Jackson,  the  offices 
became  the  spoils  of  victory,  and  have  substantially  continued 
so  ever  since.  Henceforth  politics  became  a  sort  of  game  for 
the  personal  advantage  of  the  player,  and  the  state  furnished 
the  stakes  to  be  won.  This  decline  in  the  tone  and  standard 
of  the  public  service  seems,  however,  to  have  been  the  natural 
result  of  the  accession  of  the  masses  to  power.  Jackson  him- 
self was  the  first  fruits  of  the  new  era.  The  army  of  aspir- 
ants for  place  and  pay  rushed  in  swarms  to  Washington  upon 
his  first  inauguration.  Strange  to  say,  the  public  service  did 
not  decline  so  much  as  did  the  public  servants.  The  public 
offices  were  filled  with  Jackson's  personal  friends  and  admir- 
ers ;  men  who  shouted  for  Jackson  and  an  appropriation. 

The  system  then  begun  has  continued  ever  since.  Low  as 
the  motives  and  character  of  the  spoilsmen  have  been  who 
have  forced  their  way  to  the  public  crib,  the  official  service  of 
the  nation  has  in  the  main  been  well  performed.  Two  rea- 
sons may  be  assigned  for  this.  Official  duty  is  prescribed  by 
law,  and  routine  and  system  prevail ;  the  spoilsman  is  looking 
for  the  spoils,  and  not  to  betray  or  destroy  his  country,  and 
hence  is  generally  found  upon  the  side  of  regularity  and  good 
order,  and  not  unusually  upon  the  side  of  reform,  so  long  as 
reform  exhausts  itself  by  passing  resolutions  and  making 
speeches.  If  we  regard  government  as  a  machine,  it  is  found 
that  the  spoilsmen  become  expert  machinists,  and  generally 
keep  the  machine  in  the  performance  of  its  appointed  func- 
tions. It  cannot  be  denied  that  the  spoilsman  is  the  natural 
product  of  a  constitutional  government,  based  upon  universal 


150  CONSTITUTIONAL  HISTORY. 

suffrage.  Any  one  can  appeal  to  the  masses  for  election  to 
the  highest  office,  or  if  he  does  not  wish  to  be  a  candidate 
himself,  he  may  become  such  an  organizer  and  manager  of 
votes  as  to  exact  terms  from  the  candidates,  and  hence  ob- 
tain by  appointment  the  place,  and  power,  and  emolument 
which  he  seeks.  Our  real  protection  against  the  evil  ought 
to  be  in  the  public  intelligence  and  virtue.  To  some  extent 
we  have  this  protection.  The  career  of  the  spoilsman  is  usu- 
ally short,  for  he  is  generally  ejected,  when  detected  and 
publicly  exposed.  But  the  accomplished  demagogue  usually 
has  the  art  to  conceal  his  art  and  motives.  Our  protection 
against  him  is  in  the  Constitution  and  laws.  To  be  successful, 
he  must  profess  the  utmost  devotion  to  them  ;  they  are  an 
essential  part  of  his  existence.  Indeed,  he  may  serve  his 
country  well ;  if  he  does,  his  motives,  as  well  as  his  more  vir- 
tuous competitors  whom  he  has  distanced,  stand  eclipsed  in 
the  shadow  of  his  success.  The  Constitution  and  laws  thus 
reduce  the  danger  to  a  minimum. 

This  influx  of  demagogism  in  Jackson's  administration 
alarmed  the  old-school  statesmen.  Calhoun,  speaking  the 
sentiments  of  many,  thus  denounced  it :  — 

"  When  it  comes  to  be  ODce  understood  that  politics  is  a  game ;  that 
those  who  are  engaged  in  it  but  act  a  part ;  that  they  make  this  or 
that  profession,  not  from  honest  conviction  or  intent  to  fulfil  it,  but 
as  a  means  of  deluding  the  people,  and  through  that  delusion  to  ac- 
quire power,  —  when  such  professions  are  to  be  entirely  forgotten, 
—  the  people  will  lose  all  confidence  in  public  men;  all  will  be  re- 
garded as  mere  jugglers,  the  honest  and  patriotic  as  well  as  the  cun- 
ning and  the  profligate ;  and  the  people  will  become  indifferent  and 
passive  to  the  grossest  abuses  of  power,  on  the  ground  that  those 
whom  they  elevate,  under  whatever  pledges,  instead  of  reforming, 
will  but  imitate  the  example  of  those  whom  they  have  expelled." 

President  Jackson  smote  the  United  States  Bank  with  his 
vetpj  and  it  withered  and  died.  Hi^  was  denounced  by  his 
enemies  for  his  abuse  of  the  veto  power.  He  had  the  consti- 
tutional right  to  use  it.  Our  later  experience  is  that  the  veto 
power  is  frequently  used,  is  a  most  wholesome  restraint  upon 
bad  legislation,  and  ought  to  be  used  more  frequently. 

In  furtherance  of  his  crusade  against  the  bank,  he  required 


REMOVAL  OF  THE  DEPOSITS.  161 

the  Secretary  of  the  Treasury  to  withdraw  from  it  the  funds 
of  the  United  States,  deposited  with  it  in  pursuance  of  the 
law,  but  subject  to  removal  in  the  discretion  of  the  Secretary. 
The  Secretary,  required  to  report  to  Congress  only,  refused, 
and  the  President  removed  him  and  appointed  another,  who 
complied.  Party  spirit  ran  high,  and  the  Senate  passed  a 
resolution  to  the  effect  that  the  President,  "  in  his  proceed- 
ings in  relation  to  the  public  revenues,  had  assumed  upon 
himself  power  and  authority  not  conferred  by  the  Constitu- 
tion and  laws,  but  in  derogation  of  both."  Jackson  replied 
in  a  protest  which  he  demanded  should  be  entered  upon  the 
journal  of  the  Senate.  The  Senate  refused  to  enter  his  pro- 
test. Three  years  later  the  resolution  of  censure  was  ex- 
punged from  the  records  of  the  Senate. 

These  events  caused  great  excitement.  The  President  had 
the  constitutional  power  to  remove  the  Secretary  of  the  Treas- 
ury, and  appoint  another  in  his  place.  Whether  it  was  a 
wise,  or  an  arbitrary  act  for  him  thus  to  control  the  acts  of 
the  officer  who  was  governed  by  the  laws,  and  obliged  to 
report  to  Congress,  is  a  debatable  question.  He  in  effect 
thus  controlled  the  disposition  of  the  public  funds.  The  con- 
stitutional power  to  do  this,  even  in  this  indirect  way,  was 
plainly  his.  The  Senate  had  no  constitutional  authority  upon 
which  to  base  its  resolution  of  censure.  The  President  is  not 
in  any  way  subject  to  the  discipline  of  Congress,  until  he 
shall  have  been  impeached  by  the  House  of  Representatives. 
It  had  the  physical  power  to  pass  the  resolution,  just  as  it 
might  pass  a  resolution  of  compliment  or  of  sympathy.  The 
subsequent  expunging  resolution  violated  the  integrity  of  its 
journal  of  proceedings,  which  the  Constitution  requires  it  to 
keep.  All  these  proceedings  may  now  be  regarded  as  effer- 
vescences of  partisanship,  instead  of  authoritative  precedents 
of  constitutional  construction. 

The  protective  tariff  now  became  the  chief  object  of  polit- 
ical  attention.  Prior  to  the  war,  New  England  was  in  favor 
of  free  trade,  for  her  shipping  interests  thereby  throve  the 
better.  Our  supplies  of  manufactured  goods  were  largely  re- 
ceived from  England.  In  a  month  after  the  declaration  of 
the  War  of  1812,  the  duties  upon  imported  foreign  goods  were 


152  CONSTITUTIONAL  HISTORY. 

increased  100  per  cent.  Under  the  stimulus  of  this  duty, 
manufacturing  increased  with  great  rapidity.  After  the  peace. 
President  Madison,  in  his  message  to  Congress,  recommended 
the  consideration  of  means  to  preserve  and  promote  manu- 
factures, which  he  said  "  have  sprung  into  existence  and  at- 
tained an  unparalleled  maturity  throughout  the  United  States 
during  the  European  wars.  This  source  of  national  wealth  I 
anxiously  recommend  to  the  prompt  and  constant  guardian- 
ship of  Congress."  In  1816  Congress  lowered  the  duties  to 
what  was  supposed  to  be  a  peace  basis.  The  importation  of 
goods  increased  from  $12,000,000  in  1811  to  $121,000,000  in 
1819.  New  England,  however,  favored  the  return  to  free 
trade  after  the  war,  and  the  South  opposed,  tinder  the  tariff. 
New  England  developed  such  manufacturing  interests  that 
she  changed  her  position,  and  now  demanded  its  continuance. 
The  South  also  changed  her  position  and  demanded  free  trade 
and  opposed  the  tariff.  Both  sections  were  true  to  their 
interests.  Webster  began  his  career  in  Congress  as  a  free 
trader.  Calhoun  began  his  a  few  years  later  as  an  advocate 
of  a  protective  tariff.  Each  one  was  compelled  by  events  to 
reverse  his  position.  Webster  had  to  take  care  of  his  con- 
stituentsj' who  had  embarked  in  manufactures  upon  the  faith 
of  the  tariff ;  and  Calhoun  in  the  end  had  to  oppose  the  tariff, 
because  his  constituents  sold  their  cotton  and  bought  their 
manufactured  goods.  They  came  to  feel  that  if  the  price  of 
everything  they  bought  was  increased  by  a  duty,  then  their 
agriculture  was  taxed  in  order  that  the  manufacturer  might 
thrive. 

It  is  interesting  to  notice  that  in  1790  a  tariff  for  the  pro- 
tection of  cotton  goods  was  laid.  Mr.  Burke,  a  representa- 
tive from  South  Carolina,  stated  in  Congress  in  1789  that 
the  raising  of  cotton  was  in  contemplation,  and  if  good  seed 
could  be  obtained  he  thought  it  might  prosper. 

The  peace  tariff  of  1816  was  so  adjusted  as  to  extend  pro- 
tection to  the  interests  developed  by  the  war ;  the  South  sup- 
ported it  as  an  act  of  justice  to  the  North,  and  somewhat,  no 
doubt,  to  conciliate  the  section  so  greatly  exasperated  by  the 
war.  The  constitutional  argument  was  then  waived,  or  was 
not  regarded  as  valid.     The  tariff  ^as  supported  by  many  as 


THE  PROTECTIVE  TARIFF.  153 

a  temporary  act,  to  be  superseded  by  one  better  adjusted  to 
every  interest,  after  the  country  should  have  suflBciently  re- 
covered from  the  losses  and  disturbances  of  the  war.  But  the 
manufacturing  interests  developed  by  protection  demanded 
that  the  protection  should  continue.  In  1824  Mr.  Clay,  who 
had  made  protection  to  American  industry  the  chief  feature 
of  his  political  policy,  had  the  address  to  procure  the  passage 
of  an  act  to  increase  and  extend  the  tariff.  The  South  be- 
came angry.  Its  cotton  production  had  grown  to  be  enormous. 
As  the  Constitution  prohibited  any  duties  upon  exports,  it 
was  plain  that  the  South  could  grow  rich  if  it  should  not 
have  to  pay  too  high  prices  for  the  goods  it  bought. 

The  fact  was,  it  was  gradually  falling  in  debt ;  in  short,  be- 
coming poorer.  This  state  of  things  was  charged  to  the  pro- 
tective tariff,  which  increased  the  price  of  very  many  articles 
which  the  South  consumed.  Whether  those  articles  were 
purchased  abroad  or  from  the  North,  the  result  was  the  same 
to  the  purchaser ;  because  in  the  one  case  the  duty  went  to  the 
government,  and  in  the  other  it  enabled  the  northern  manu- 
facturer to  get  a  higher  price.  In  the  colonial  condition,  the 
southern  colonies  were  rich,  and  the  northern  poor.  But  in 
1824  and  later,  it  was  seen  that  the  Northern  States  had  be- 
come rich  and  the  Southern  poor.  It  was  plain  to  be  seen 
that  in  the  North  the  cities  had  grown  to  be  great,  and  were 
believed  to  be  rich,  while  those  at  the  South  had  declined. 
The  North  became  a  money  lender  to  the  South,  and  southern 
planters  made  journeys  to  the  North  to  borrow  money  upon 
their  patrimonial  estates.  All  this,  too,  as  Benton  in  his 
"  Thirty  Years'  View  "  expresses  it,  in  face  of  the  fact  that 
southern  exports  since  the  Revolution  had  amounted  to  the 
sum  of  eight  hundred  millions  of  dollars,  a  sum  equal  to  the 
product  of  the  Mexican  mines  since  the  days  of  Cortez. 

The  South  charged  this  result  upon  the  tariff ;  it  had  been 
drained  that  the  North  might  thrive.  In  1828  another  revision 
and  extension  of  the  tariff  took  place.  The  South  charged 
that  this  was  brought  about  by  the  agency  of  New  England, 
in  order  to  gratify  the  cupidity  of  her  wealthy  manufacturers. 
Public  meetings  were  held  in  South  Carolina,  and  the  indig- 
nation and  anger  of  her  people  were  freely  expressed.     The 


154  CONSTITUTIONAL  HISTORY. 

constitutional  argument  now  received  prominence.  The  eighth 
section  of  tlie  first  article  declares  that  "  Congress  shall  have 
power  to  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defence  and  gen- 
eral welfare  of  the  United  States."  That  is,  as  urged  by  the 
South,  it  could  impose  duties  solely  for  the  purposes  of  rev- 
enue, to  pay  the  debts  and  expenses  of  the  government,  and 
to  provide  for  the  general  welfare  ;  therefore,  since  no  other 
purpose  was  expressed,  Congress  could  impose  duties  for  no 
other  purpose ;  certainly  not  for  the  purposes  of  protection, 
when  the  power  is  only  given  for  revenue ;  clearly,  also,  this 
was  opposed  to  the  general  welfare,  since  while  it  benefited 
one  section,  it  injured  another.  It  is  now  settled  that  where 
the  power  is  given  to  Congress  to  do  an  act,  such  as  to  lay 
duties,  the  courts  will  not  inquire  into  the  purpose.  But  it  is 
just  as  much  the  duty  of  Congress  as  of  the  courts  to  decide 
correctly,  and  if  the  only  power  conferred  upon  Congress  is 
to  lay  duties  for  the  purposes  of  revenue,  it  is  clearly  wrong 
for  that  body  to  lay  duties  for  the  primary  purpose  of  protec- 
tion. Congress  should  not  take  advantage  of  the  fact  that  the 
courts  have  not  the  power  to  interfere. 

.^  There  was  another  reason  why  South  Carolina  insisted  upon 
a  tariff  for  revenue  only,  but  prominence  was  not  given  to  it. 
Protection  to  home  manufactures  gave  the  North  increased 
population,  and  thus  a  larger  representation  in  Congress.  It 
extended  the  field  of  white  men's  labor,  and  thus  increased 
the  natural  enemies  of  slave  labor,  and  of  the  system  which 
degrades  labor.  A  tariff  for  revenue  only,  if  framed  by  slave- 
holders, would  be  laid  upon  articles  which  home  industry 
could  not  produce,  such  as  tea,  coffee,  and  spices.  Thus, 
white  laborers  and  voters  would  not  be  multiplied  so  fast  at 
the  North,  and  necessary  articles  of  consumption  could  be 
bought  of  the  foreign  producer  for  the  least  money.  A  tariff 
for  revenue  only  would  lessen  a  peril  to  slavery  and  save 
money  to  the  slave-holder. 

We  can  readily  understand  that  the  people  of  South  Caro- 
lina, under  the  lead  of  such  able  men  as  Calhoun  and  Hayne, 
accepted  their  construction  of  the  Constitution,  and  believed 
that  a  protective  tariff  was  an  inexcusable  outrage.    The  state 


THE  NULLIFICATIOISr  ARGUMENT.  155 

had  recourse  to  the  famous  Kentucky  and  Virginia  Resolu- 
tions of  1798.  A  convention  was  called  in  which  the  people 
were  invited  to  assert  their  rights.  Their  leaders  asserted  the 
right  of  nullification.  The  South  Carolina  doctrine  of  nullifi- 
cation was  an  alleged  application  of  the  doctrine  of  the  Ken- 
tucky and  Virginia  Resolutions.  The  claim  was  that  under 
the  Constitution  a  state  has  the  right  to  judge  respecting  the 
constitutionality  of  an  act  of  Congress,  and  if  it  decide  it  to 
be  unconstitutional,  to  nullify  it.  The  argument  upon  which 
this  claim  rests  may  be  briefly  stated. 

The  Constitution  is  a  compact  between  the  states  ;  the 
states  were  the  parties  making  the  compact;  the  United 
States  was  brought  into  being  as  the  creation  or  creature  of 
the  compact,  not  a  party  to  it,  but  an  agency  appointed  by  it 
to  exercise  only  the  powers  delegated  by  the  states  to  the 
agency,  and  hence  the  parties,  authorizing  by  the  compact 
the  agency,  have  the  power  to  judge  whether  the  agency  ex- 
ceeds the  delegated  powers,  and  if  so  to  repudiate  such  unau- 
thorized action,  and  nullify  it.  That  the  Constitution  is  a 
compact  between  the  states  was,  in  addition  to  the  historical 
argument,  made  to  rest  upon  the  eighth  article  of  the  Consti- 
tution, which  says :  "  The  ratification  of  the  conventions  of 
nine  states  shall  be  sufficient  for  the  establishment  of  this  con- 
vention between  the  states  so  ratifying."  It  is  thus  shown  to 
have  been  established  by  ratification  of  states,  and  between 
states,  and  hence  a  compact  between  them.  The  United 
States  could  be  in  no  sense  the  superior  of  the  states,  because 
the  creature  of  the  compact,  and  hence  only  existent  under 
the  compact,  and  destitute  of  all  powers  except  those  con- 
ferred by  it.  This  was  also  shown  by  the  tenth  amendment 
to  the  Constitution,  which  provides  that  "The  powers  not 
delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  states,  are  reserved  to  the  states  respec- 
tively or  to  the  people."  This,  it  was  urged,  is  an  explicit 
declaration  that  the  Constitution  confers  upon  the  United 
States  the  powers  enumerated  in  it,  and  withholds  all  others. 
In  case  of  an  alleged  usurpation  by  the  United  States  of 
powers  not  delegated,  each  state  has  the  right  to  judge  re- 
specting the  usurpation,  because,  as  it  was  urged,  each  state  is 


156  CONSTITUTIONAL  HISTORY. 

a  sovereign  state  and  an  equal  party  to  the  compact,  and  can 
have  no  superior ;  and  not  only  has  an  equal  right  with  every 
other  state  to  judge,  but,  of  necessit}^  must  exercise  that  right, 
since  no  other  competent  judge  exists.  The  United  States 
cannot  be  the  judge,  since  it  is  an  inferior,  being  the  mere 
creature  of  the  compact,  and  in  no  sense  a  sovereign  over  the 
states,  but  merely  an  agent  for  the  states  in  certain  enumer- 
ated particulars.  In  case  of  an  alleged  usurpation  of  powers 
by  the  United  States,  palpable  and  dangerous,  the  state  has 
the  right  to  interpose  and  arrest  the  action  of  the  United 
States,  because  some  remedy  is  necessary,  and  no  other  exists. 
It  thus  stops  aggression  and  usurpation,  and  admonishes  its 
creature  and  agent  to  retire  within  its  rightful  powers.  An 
agent  can  only  use  his  delegated  power  for  the  benefit  of  his 
principal  and  never  against  him  ;  the  delegation  of  power  is 
not  its  surrender,  and  if  the  principal  resumes  it,  he  simply 
resumes  his  own. 

Nullification  had  been  suggested  by  Kentucky  in  1799  as  a 
proper  remedy.  It  was  now  said  to  be  a  proper  remedy.  It 
must  be  declared  by  a  convention  of  the  people  of  a  state 
properly  represented  by  delegates.  Nullification  is  but  the 
solemn  declaration  of  the  people  that  the  act  is  null,  which 
without  such  a  declaration  is  already  null  per  se.  It  was  not 
quite  clear  what  the  further  action  of  the  state  should  be,  if, 
notwithstanding  the  nullification,  the  United  States  should 
persist  in  its  alleged  usurpation.  Mr.  Madison,  who  was  still 
living,  said  nothing  further  was  contemplated  by  the  Virginia 
Resolutions  in  1798,  than  respectfully  to  remonstrate  against 
the  alien  and  sedition  acts,  and  to  procure  either  their  repeal 
by  Congress,  or  to  secure  the  cooperation  of  other  states  and 
procure  an  amendment  of  the  Constitution.  John  Taylor  of 
Caroline  said  that,  "  The  appeal  is  to  public  opinion  ;  if  that 
is  against  us  we  must  yield."  So  understood,  the  doctrine 
now  called  Nullification  had  been  the  accepted  creed  of  the 
anti-federalist  or  republican  party  from  1798.  As  thus  un- 
derstood, it  seemed  to  be  maintainable  within  the  Constitu- 
tion ;  but  under  the  pressure  of  practical  nullification  in 
South  Carolina,  it  was  plain  that  the  logical  result  of  the 
doctrine,  in  case  the  United  States  should  refuse  to  recede. 


THE  ANTI-NULLIFICATION  ARGUMENT.  157 

must  be  the  secession  of  the  state,  or  coercion  by  the  United 
States.  Secession  was  logical,  for  if  the  doctrine  of  compact 
was  sound,  then,  when  the  compact  was  broken,  the  state 
was  released  from  it.  The  real  end  therefore  of  the  compact 
theory  was  secession  and  dissolution  of  the  Union.  But  South 
Carolina  said  she  did  not  propose  to  secede ;  she  meant  to 
remain  in  the  Union,  and  thus  enjoy  its  benefits  and  repudi- 
ate its  burdens.     Such  a  position  was  indefensible. 

Meanwhile  another  line  of  reasoning  and  argument  had 
been  brought  out  and  adopted  by  the  Supreme  Court  under 
the  leadership  of  its  Chief  Justice,  John  Marshall.  In  the 
grasp  of  his  intellect,  the  clearness  of  his  understanding,  the 
acuteness  and  accuracy  of  his  analysis,  and  the  solidity  and 
strength  of  his  demonstration,  the  great  Chief  Justice  is  now 
acknowledged  as  the  master  of  constitutional  discussion.  Mr. 
Webster  was  entirely  familiar  with  his  weighty  judgment^. 
He  had  contended  at  the  bar  for  the  principles  announced 
from  the  bench,  and  he  said  in  the  great  debate  with  Mr. 
Hayne  in  the  Senate  in  1830,  "  It  is  a  subject  of  which  my 
heart  is  full."  In  this  debate  he  advanced  the  line  of  argu- 
ment which  was  ultimately  to  prevail.  No  speech  delivered 
in  America  has  more  renown.  As  a  study  of  lofty,  com- 
manding, and  genial  eloquence,  it  remains  a  masterpiece. 
Our  countrymen  are  copious  in  oratory,  but  durable  speci- 
mens are  rare.  We  praise  our  orators,  but  seldom  quote 
them.  Mr.  Webster's  speech  upon  this  occasion  was  the  be- 
ginning of  a  revolution  in  the  public  mind  of  the  construc- 
tion of  the  Constitution.  He  boldly  combated  the  accepted 
construction,  and  in  the  judgment  of  posterity  overthrew  it. 
Mr.  Blaine,  in  his  "  Twenty  Years  in  Congress,"  states  that 
"  the  speech  of  Webster  upon  that  occasion  had  the  force  of 
an  amendment  to  the  Constitution.  It  corrected  traditions, 
changed  convictions,  revolutionized  conclusions.  It  gave  to 
the  friends  of  the  Union  the  abundant  logic  which  established 
the  right  and  power  of  the  government  to  preserve  itself.'* 

The  principal  points  of  his  constitutional  argument  were : 
The  Constitution  is  not  a  compact  or  league  among  the  states ; 
it  is  a  constitution;  a  constitution  is  fundamental  law.  It 
was  not  made  by  the  states,  but  by  the  'people,  and  is  there- 


158  CONSTITUTIONAL  HISTORY. 

fore  the  fundamental  law  of  the  people.  Its  language  is, 
"  We,  the  people  of  the  United  States,  do  ordain  and  estab- 
lish this  Constitution."  Being  the  fundamental  law,  there 
can  be  no  law  or  act  of  any  state  superior  to  it,  else  it  would 
not  be  fundamental.  It  declares  its  own  superiority  in  these 
words  (Art.  6,  Sec.  2) :  "  This  Constitution,  and  the  laws  of 
the  United  States  which  shall  be  made  in  pursuance  thereof, 
and  all  treaties  made  or  which  shall  be  made,  under  the  au- 
thority of  the  United  States,  shall  be  the  supreme  law  of  the 
land ;  and  the  judges  in  every  state  shall  be  bound  thereby, 
anything  in  the  Constitution  or  laws  of  any  state  to  the  con- 
trary notwithstanding." 

The  states  are  sovereign  only  with  reference  to  each  other, 
and  then  only  so  far  as  their  sovereignty  is  not  affected  by 
this  supreme  law.  But  the  states  derive  their  power  from 
the  people,  and  in  so  far  as  the  people  have  given  the  higher 
power  to  the  United  States,  no  state  can  question  it.  Both 
the  United  States  and  the  states  deriving  their  power  from 
the  people,  the  people  had  thus  given  to  the  United  States, 
and  not  to  the  states,  the  power  to  decide  any  case  of  alleged 
infraction  by  the  United  States  of  the  power  of  the  states, 
and  likewise  any  infraction  by  the  states  of  the  power  of  the 
United  States.  That  power  to  decide  is,  in  some  cases.  Con- 
gress, and  in  others,  the  judicial  power  of  the  United  States. 
The  language  is:  "The  judicial  power  of  the  United  States 
shall  extend  to  all  cases  in  law  or  equity  arising  under  this 
Constitution  and  the  laws  of  the  United  States."  The  peo- 
ple, therefore,  by  the  Constitution  have  created  the  tribunals 
to  decide,  the  Supreme  Court  in  all  cases  between  litigants, 
Congress  in  all  political  cases,  not  the  subject  of  judicial 
decision.  The  Constitution  of  the  United  States  created  a 
government  of  the  people,  for  the  people,  over  the  people  ; 
not  of  the  states,  for  the  states,  over  the  states.  Within  its 
granted  powers  it  binds  all  wherever  they  are.  Now,  if  this 
government  admits  the  right  of  any  to  disobey,  it  surrenders 
its  right  to  govern  them,  and  therefore  as  to  them  ceases  to 
be  a  government.  Hence  government  must  necessarily  imply 
the  right  to  compel  obedience,  to  subdue  resistance,  here, 
there,  everywhere.     It  cannot  keep  that  power,  if,  outside  of 


WEBSTER'S  PROPOSITIONS.  159 

itself,  there  exists  the  acknowledged  power  to  decide  upon 
the  rightfulness  and  authority  of  its  own  acts.  Being  a  gov- 
ernment, it  must  have  the  power  to  prevent  or  overcome  any 
act  which  seeks  to  set  it  aside  ;  for  the  defence  of  its  own  ex- 
istence is  the  prime  necessity.  Being  a  government  of  the 
people,  by  the  people,  for  the  people,  it  binds  all  the  people. 
If  the  state  has  equal  power  with  the  United  States  to  decide 
upon  any  question  of  infraction  by  the  United  States  of  the 
Constitution,  then,  whenever  it  shall  decide  that  question  in 
its  own  favor  and  enforce  its  decision,  the  inevitable  result 
must  be  the  supremacy  of  the  state  over  the  United  States, 
and  consequently  the  destruction  of  the  United  States. 

Mr.  Webster  subsequently  formulated  the  results  of  his 
argument  in  four  propositions,  which  I  quote :  — 

*'  1.  That  the  Constitution  is  not  a  league,  confederacy,  or  compact 
between  the  people  of  the  several  states  in  their  sovereign  capaci- 
ties ;  but  a  government  proper,  founded  on  the  adoption  of  the  peo- 
ple, and  creating  direct  relations  between  itself  and  individuals. 

"  2.  That  no  state  authority  has  power  to  dissolve  these  relations  ; 
that  nothing  can  dissolve  them  but  revolution  ;  and  that  consequently 
there  can  be  no  such  thing  as  secession  without  revolution. 

"  3.  That  there  is  a  supreme  law,  consisting  of  the  Constitution  of 
the  United  States,  acts  of  Congress  passed  in  pursuance  of  it,  and 
treaties ;  and  that  in  cases  not  capable  of  assuming  the  character  of 
a  suit  in  law  or  equity,  Congress  must  judge  of  and  finally  interpret 
this  supreme  law,  so  often  as  it  has  occasion  to  pass  acts  of  legisla- 
tion ;  and  in  cases  capable  of  assuming,  and  actually  assuming,  the 
character  of  a  suit,  the  Supreme  Court  of  the  United  States  is  the 
final  interpreter. 

"4.  That  an  attempt  of  a  state  to  abrogate,  annul,  or  nullify  an 
act  of  Congress,  or  to  arrest  its  operation  within  her  limits,  on  the 
ground  that  in  her  opinion  such  law  is  unconstitutional,  is  a  direct 
usurpation  on  the  just  powers  of  the  general  government,  and  on  the 
equal  rights  of  the  other  states,  a  plain  violation  of  the  Constitution, 
and  a  proceeding  essentially  revolutionary  in  its  character  and  ten- 
dency." 

It  may  appear  strange  to  us,  but  the  bold  annunciation  by 
Mr.  Webster  that  the  Constitution  is  the  work  of  the  people, 
and  not  of  the  states,  was  received  with  a  sort  of  horror  by 
the  party  opposed  to  him,  as  a  new  and  dangerous  heresy. 


160  CONSTITUTIONAL  HISTORY. 

But  thenceforth  this  position  was  the  vantage-ground  from 
which  the  weapons  of  assault  were  directed  against  the  heresy 
of  nullification.  It  must  be  conceded,  however,  that  the  Su- 
preme Court  of  the  United  States  was  not  the  arbiter  ap- 
pointed to  decide  upon  an  important  point  in  dispute  between 
South  Carolina  and  the  United  States,  namely,  the  constitu- 
tional power  of  the  United  States  to  lay  duties  for  the  pur- 
poses of  protecting  American  industry  against  foreign  compe- 
tition. There  is  no  practicable  way  to  present  this  question 
to  the  court,  unless  Congress  shall,  in  an  act  levying  duties, 
declare  the  sole  purpose  of  the  levy  to  be  to  protect  Ameri- 
can industry.  In  such  case  an  individual,  upon  refusing  to 
pay  the  duties,  could  bring  the  question  before  the  court.  Mr. 
Calhoun,  it  is  said,  desired  that  some  bill,  so  framed,  should 
be  passed,  but  of  course  any  bill  levying  duties  is  in  some 
sense  a  revenue  bill,  and  under  color  of  this  fact  it  was  easy 
to  evade  any  compliance  with  Mr.  Calhoun's  request. 

South  Carolina,  in  1830,  passed  a  bill  authorizing  the  peo- 
ple to  call  a  convention  to  nullify,  in  that  state,  the  obnoxious 
tariff  acts.  The  proposition  to  call  a  convention  was  sub- 
mitted to  the  people,  and  at  first  failed  to  command  sufficient 
votes. 

Following  that  failure.  South  Carolina  was  bantered  by  the 
Protectionists,  and  was  threatened  by  President  Jackson.  The 
nullifiers  thought  to  turn  public  opinion  in  their  favor  by  the 
toasts  and  speeches  to  be  delivered  at  a  dinner  in  Washington 
in  1830,  on  Jefferson's  birthday.  President  Jackson  was  in- 
vited, and  it  was  hoped  to  commit  him  to  the  nullification 
utterances  of  the  managers.  The  regulation  toasts  were  pre- 
pared to  honor  Jefferson  as  the  father  of  the  doctrine,  but 
Jackson  confounded  the  managers  by  giving  the  toast,  "  Our 
Federal  Union ;  it  must  be  preserved."  Never  was  a  toast 
more  efficient.  If  the  Democratic  party  was  marching  towards 
nullification,  that  toast  called  a  halt  which  was  promptly 
obeyed. 

In  1832  another  tariff  act  was  passed  by  Congress,  and 
under  the  indignation  caused  by  this  supposed  increase  of  in- 
jury, the  nullifiers  commanded  the  popular  vote.  In  October 
of  that  year  the  famous  convention  was  ordered.     A  conven- 


THE  ORDINANCE   OF  NULLIFICATION.  161 

tion  properly  convened  is  the  assemblage  of  the  people  and  of 
the  state,  and  possesses  all  the  powers  reserved  to  both.  The 
state  is  but  the  creation  of  the  people,  the  legislature  but  one 
of  the  organs  of  the  state ;  and  heiyje  both  state  and  legisla- 
ture combined  fail  to  wield  all  the  powers  of  the  people.  It 
was  therefore  thought  proper  to  have  the  people  assemble  in 
convention.  The  convention  duly  assembled.  It  adopted  an 
ordinance  styled  "  An  ordinance  to  nullify  certain  acts  of 
Congress  of  the  United  States,  purporting  to  be  laws  laying 
duties  and  imposts  on  the  importation  of  foreign  commodi- 
ties." The  fallacy  of  the  mere  nullification  position  was 
practically  conceded,  and  the  state  advanced  to  the  more  log- 
ical position  of  threatened  secession. 

This  ordinance  purported  to  sweep  out  of  existence,  so  far 
as  South  Carolina  was  concerned,  every  vestige  of  a  national 
tariff.  It  went  further ;  it  declared  that  "  the  people  of  the 
state  would  henceforth  hold  themselves  absolved  from  all  fur- 
ther obligation  to  maintain  or  preserve  their  political  connec- 
tion with  the  people  of  the  other  states,  and  would  proceed 
forthwith  to  organize  a  separate  government,  and  do  all  other 
acts  and  things  which  sovereign  states  may  of  right  do."  The 
ordinance,  prudently,  was  not  to  take  effect  until  three  months 
later.  This  time  was  given,  not  only  to  enable  the  state  to 
get  ready  for  the  new  order  of  things,  but  to  give  other  states 
an  opportunity  to  join  with  South  Carolina,  and  also  in  the 
hope  that  the  United  States  would  recede.  The  convention 
issued  an  address  to  the  public  styled  an  "  Exposition,"  in 
which  the  case  of  the  state  is  set  forth  with  great  eloquence 
and  force. 

On  the  10th  of  December,  1832,  President  Jackson  issued 
his  proclamation,  denouncing  this  attempt  of  South  Carolina 
to  nullify  the  laws  of  the  United  States,  and,  following  the 
line  of  Mr.  Webster's  great  argument,  showing  the  supremacy 
of  the  United  States,  exhorting  the  state  to  recede,  and  threat- 
ening coercion  and  punishment  in  case  of  any  resistance  to 
the  execution  of  the  laws  of  the  United  States.  The  Presi- 
dent closed  by  saying :  "  The  laws  of  the  United  States  must 
be  executed ;  I  have  no  discretionary  power  on  the  subject. 
My  duty  is  emphatically  pronounced  in  the  Constitution. 
11 


162  CONSTITUTIONAL  HISTORY. 

Those  that  told  you  that  you  might  peaceably  prevent  their 
execution  deceived  you.  Their  object  is  disunion,  and  dis- 
union by  armed  force  is  treason.  Are  you  ready  to  incur  its 
guilt?  If  you  are,  on  y,our  unhappy  state  will  fall  all  the 
evils  of  the  conflict  you  force  upon  the  government  of  your 
country." 

Mr.  Calhoun  was  at  this  time  Vice-President.  He  resigned 
that  oflBce  and  was  immediately  elected  by  South  Carolina  to 
the  United  States  Senate.  Governor  Hayne  of  South  Caro- 
lina issued  a  counter  proclamation,  warning  the  people  of  the 
state  not  to  be  seduced  from  their  primary  allegiance  to  the 
state  by  the  "  pernicious  and  false  doctrines  of  the  Presi- 
dent." 

It  is  said  that  Jackson  intended  to  have  Mr.  Calhoun  ar- 
rested for  treason  ;  but  if  that  was  true,  he  was  dissuaded 
from  the  purpose.  He  promptly  caused  United  States  troops 
to  be  thrown  into  Fort  Moultrie  in  Charleston  harbor,  and  a 
sloop  of  war  was  sent  to  that  harbor  for  the  purpose  of  aiding 
the  United  States  revenue  officers,  if  aid  should  be  needed,  in 
collecting  the  revenue.  Congress  assembled  the  first  Monday 
of  December.  Bills  were  introduced  and  passed,  authorizing 
the  President  to  use  what  force  might  be  necessary  to  execute 
the  laws  ;  and  then  the  laws  were  executed.  At  the  same 
time  bills  were  introduced  to  reduce  the  tariff.  A  desire  to 
conciliate  South  Carolina  was  strongly  prevalent  in  Congress. 
Clay  and  Calhoun,  the  two  champions  of  the  opposing  sys- 
tems, came  together  and  concocted  a  bill,  which  proposed  a 
reduction  of  the  tariff,  to  be  gradually  effected  in  the  course 
of  ten  years.  It  was  hoped  that  all  interests,  both  of  the 
manufacturers  of  the  North  and  the  cotton  producers  of  the 
South,  would  be  preserved  unharmed,  Mr.  Clay,  it  was  said, 
was  afraid  the  Union  would  be  dissolved ;  Mr.  Calhoun,  some 
said,  was  afraid  Jackson  would  hang  him.  The  compromise 
measure,  as  it  was  called,  encountered  bitter  opposition,  espe- 
cially from  New  England.  Webster  truly  said,  it  would  be 
yielding  great  principles  to  faction ;  that  the  time  had  come 
to  test  the  strength  of  the  Constitution  and  the  government. 
Davis,  also  senator  from  Massachusetts,  said,  "  You  propose  to 
sacrifice  us  to  appease  the  unnatural  and  unfounded  discontent 


I 


THE  THEORY  OF  COMPACT.         163 

of  the  South,  —  a  discontent,  I  fear,  having  far  deeper  root 
than  the  tariff,  and  will  continue  when  that  is  forgotten." 
Benton  pointed  out  the  absurdity  of  one  Congress  attempt- 
ing to  bind  another.  Nevertheless,  the  bill  passed ;  South 
Carolina  claimed  to  have  won  the  victory;  repealed  her  se- 
cession ordinance ;  and  compliance  with  the  laws  was  never 
suspended. 

Looking  back  over  the  period  of  fifty  years,  it  is  scarcely 
to  be  doubted  that  the  compromise,  so  far  as  it  was  designed 
to  avert  the  necessity  to  enforce  the  laws  of  the  United  States, 
was  a  great  mistake.  South  Carolina  then  stood  practically 
alone.  True,  the  states  of  Virginia,  Georgia,  and  Alabama 
passed  resolutions  of  sympathy  and  approval,  and  gave  some 
assurance  that  they  would  join  her  in  forming  a  Southern 
confederacy.  North  Carolina  emphatically  repudiated  her  ac- 
tion. Jackson  had  the  nerve  and  vigor  to  put  down  the 
rebellion.  He  hated  Calhoun  ;  he  was  eager  for  the  fight ; 
and  but  for  the  compromise,  the  integrity  of  the  Union  might 
have  been  maintained,  and  the  heresy  of  secession  crushed,  at 
a  tithe  of  the  expenditure  of  blood  and  treasure  which  it  cost 
thirty  years  later. 

Respecting  the  merits  of  the  South  Carolina  or  secession  ar- 
gument, it  must  be  conceded  that  the  corner-stone  upon  which 
it  rests,  namely,  that  the  Constitution  is  a  compact  between 
sovereign  states,  and  that  the  government  of  the  United  States, 
or,  as  Calhoun  expressed  it,  of  the  states  united^  is  the  creature 
of  that  compact,  is,  as  a  mere  academic  disputation,  strongly 
supported.  It  had  the  support  of  the  great  authority  of  Jeffer- 
son and  Madison,  and  was  scarcely  contested  in  Congress  until 
Webster  hurled  the  massive  weight  of  his  eloquence  and 
argument  against  it  in  1830.  Nor  is  his  proposition  that  the 
government  of  the  United  States  is  a  government  formed  by 
the  people  wholly  unassailable.  The  truth  is  that  he  gave 
to  the  preamble  of  the  Constitution,  and  to  the  fact  that  it 
was  adopted  by  conventions  of  the  people  in  the  several  states, 
a  weight  which  the  facts  of  history  scarcely  justified.  The 
confederate  Congress  was  jealous  of  the  convention  which 
framed  the  Constitution.  The  convention  did  not  expect 
Congress  to  approve  a  constitution  which  put  a  period  to  its 


164  CONSTITUTIONAL  HISTORY. 

power  and  existence.  The  convention  saw,  in  conventions 
called  in  the  several  states  for  the  purpose,  a  better  prospect  of 
the  adoption  of  the  Constitution  than  in  the  several  legisla- 
tures, elected  for  other  purposes,  and  naturally  jealous  of  the 
state-rights  and  powers  which  the  Constitution  would  restrict. 

The  phrase  "  We  the  people  of  the  United  States,"  in  the 
preamble,  was  originally  followed  by  the  words  "  of  New 
Hampshire,  Massachusetts,"  etc.,  naming  the  thirteen  states ; 
but  as  the  Constitution  was  to  become  valid  between  nine 
ratifying  states,  and  as  it  was  possible  that  no  more  would 
ratify  it,  the  names  of  the  states  were  stricken  out,  so  as  to 
adapt  it  to  nine  or  more,  as  the  case  might  be.  But  Webster's 
main  proposition  that,  whether  formed  by  states  or  people,  a 
government  was  established  supreme  over  all  the  people  of 
all  the  states  with  respect  to  its  enumerated  powers,  was  thor- 
oughly unassailable  ;  that  as  such  it  was  the  final  judge  of  its 
own  powers,  subject  only  to  compulsory  correction  by  the  peo- 
ple by  amendment  of  the  Constitution,  was  equally  unassail- 
able. It  seems  probable  that  the  framers  of  the  Constitu- 
tion, in  preparing  the  ratification  article,  employed  a  careless 
form  of  expression,  not  quite  consistent  with  the  whole 
scheme.  If  they  had  said,  "  shall  be  binding  between  the  peo- 
ple of  the  states,"  the  nullification  argument  would  scarcely 
have  had  a  shred  of  support  in  the  Constitution  itself.  It  is 
easy  to  believe  that  that  is  what  they  meant.  When,  there- 
fore, the  consequences  of  the  nullification  argument  were  seen 
to  be  secession  and  disunion,  the  devotion  of  the  people  to  the 
Union  in  effect  added  the  missing  words,  "  the  people  of," 
and  preponderated  the  scale  in  favor  of  the  Union.  They 
finally  had  to  throw  the  sword  into  the  scale,  to  amend  the 
Constitution,  if  any  amendment  was  needed. 

No  amendment,  however,  was  needed  to  confer  the  power 
to  preserve  the  Union.  The  Constitution  was  made  for  the 
states  united  into  one.  The  original  thirteen  states  made  the 
Constitution,  but  it  in  turn  made  the  other  states.  The  Con- 
stitution became  the  parent  of  more  states  than  existed  at  its 
origin.  The  original  thirteen  states  were  practically  one  in 
national  spirit  before  they  made  the  Constitution,  otherwise 
they  never  would  have  made  it.      The  states  subsequently 


VAN  BUREN'S  ADMINISTRATION.  165 

made  from  the  common  territory  were  glad  enough  to  be 
admitted  into  the  Union.  The  old  state  pride  and  sover- 
eignty of  the  charter  members  had  little  to  feed  upon  in  the 
new  states.  The  spirit  of  nationality,  —  that  common  tie, 
which  binds  the  people  of  one  race,  language,  customs,  coun- 
try, aspirations,  sufferings,  history,  and  liberty,  together,  —  a 
tie  stronger  than  any  written  constitution,  because  its  creator 
and  inspirer,  its  germ,  nutrition,  and  vital  principle,  —  sent 
forth  the  people  of  the  Northern  States  to  bring  the  Southern 
people  back  within  the  common  household.  There  was.no 
other  place  for  them,  no  other  way  for  us,  without  violating 
the  promptings  of  blood  and  nurture.  They  had  to  come  back, 
else  in  the  course  of  time  and  nature  we  would  have  gone  to 
them.  The  whip  was  in  the  hand,  blood  was  up,  but  a  kins- 
man's love  was  ready  to  forgive  and  forget  in  due  time.  The 
question  of  constitutional  right  was  little  more  than  a  con- 
venient pretext  after  all.  Human  nature  had  its  course,  the 
wanderers  came  back,  sullen  at  first,  and  why  not ;  for  who 
before  the  smart  is  gone  kisses  the  rod  that  smites  him  ?  But 
they  were  glad  enough  in  the  end  to  get  back  where  they 
belonged ;  sadder  but  wiser,  and  burying  with  time  remem- 
brances unpleasant  to  preserve. 

The  United  States  seemed  to  gain  by  the  compromise  which 
kept  South  Carolina  in  the  Union,  but  it  really  lost.  Mr. 
Calhoun  always  claimed  that  South  Carolina  had  caused  the 
United  States  to  back  down,  and  he  was  right.  He  devoted 
a  large  portion  of  the  remainder  of  his  life  in  applying  his 
nullification  doctrines  to  the  rights  of  the  states,  respecting 
slavery  and  slave  extension.  He  converted  the  South,  and 
hence  the  rebellion  of  later  years  followed. 

We  part  with  Andrew  Jackson  with  this  tribute  to  his 
memory :  his  denial  of  the  right  of  South  Carolina  to  secede, 
his  assertion  of  the  power  and  purpose  of  the  United  States 
to  coerce  her  to  submission,  furnished  a  precedent,  which 
made  the  assertion  of  the  like  power  and  purpose  thirty  years 
later  less  questioned  and  more  commanding. 

Martin  Van  Bureu  succeeded  Jackson  in  1837.  He  stated 
in  his  inaugural  address  that  the  Revolution  had  been  achieved 
at  the  period  of  his  birth.     He  was  a  man  of  great  ability, 


166  CONSTITUTIONAL  HISTORY. 

capable  of  becoming  a  statesman,  but  his  associations  and 
aptitudes  diverted  him  into  the  career  of  the  adroit  politician. 
He  engaged  early  in  the  politics  of  his  native  state,  and  was 
apt  in  acquiring  and  employing  the  arts  by  which  shrewd 
management  takes  precedence  of  meritorious  service.  Rap- 
idly acquiring  place  and  distinction,  he  had  the  address  to 
obtain  the  confidence  of  Jackson,  and  to  defeat  the  presiden- 
tial aspirations  of  the  statesmen,  the  fulfillment  of  whose  am- 
bition Jackson's  advent  had  already  postponed.  With  Jack- 
son's favor  he  became  heir  in  possession  of  the  presidential 
mantle. 

Van  Buren  professed  that  he  only  sought  to  follow  in  the 
footsteps  of  Jackson.  He  had  to  encounter  a  great  financial 
depression  in  the  country,  and  the  reproach  of  a  national  debt 
which  this  depression  caused.  The  destruction  of  the  na- 
tional bank  and  the  insolvency  of  many  other  banks,  by  some 
of  which  the  treasury  lost  large  sums,  led  him  to  propose  and 
procure  the  establishment  of  the  Sub-Treasury  of  the  United 
States.  This  was  an  excellent  measure.  It  was  bitterly 
opposed  upon  party  grounds ;  was  repealed,  but  finally  reen- 
acted ;  and  has  long  stood  approved  upon  its  merits.  By  it 
the  government  assumed  the  care  and  custody  of  its  own 
funds.  They  had  hitherto  been  exposed  to  loss  by  the 
insolvency  of  the  banks  in  which  they  were  deposited.  The 
complete  ascendency  of  "  machine  politics  "  was  achieved  in 
this  administration,  n  This  fact  and  the  financial  distress  ena- 
bled the  newly  nameoWhig  party  —  the  party  favoring  a 
national  bank,  internal  improvements,  a  protective  tariff,  and 
a  broader  constitutional  construction  —  to  defeat  Van  Buren 
and  elect  William  Henry  Harrison,  who,  dying  at  the  close 
of  the  first  month  of  his  administration,  was  succeeded  by 
John  Tyler.     He  was  the  first  Vice-President  thus  promoted. 

President  Tyler  was  ambitious  to  obtain  by  the  votes  of  the 
people  an  extension  of  the  power  which  accident  had  accorded 
him.  Originally  an  Anti -  Federalist  and  Democrat  of  the 
straitest  school  of  constitutional  construction,  — a  sympathizer 
with  nullification,  and  foremost  among  the  champions  of  state- 
rights, —  his  very  narrowness  had  forced  him  into  opposition 
to  the  expunging  resolution  which,  the  followers  of  Andrew 


ANNEXATION   OF   TEXAS.  167 

Jackson  made  a  test  of  party  fealty,  and  constrained  him  to 
act  temporarily  with  the  Whigs  of  his  state.  While  in  this 
false  position,  the  Whigs  made  him  their  candidate  for  Vice- 
President.  He  had  no  real  sympathy  with  the  men  or  the 
measures  of  that  party,  and  when  he  became  President  he 
speedily  reverted  to  his  original  proclivities.  Twice  he  vetoed 
their  bill  to  charter  the  national  bank,  and  by  other  vetoes 
prevented  their  favorite  measures  from  becoming  laws.  The 
rupture  between  him  and  the  Whigs  was  complete.  The 
Democrats  profited  by  his  apostasy,  but  recognized  no  obliga- 
tion to  reward  it.  During  Mr.  Tyler's  administration  the 
annexation  of  Texas  was  practically  accomplished.  It  forms 
an  interesting  chapter  in  our  history. 

In  1763,  at  the  close  of  the  Seven  Years'  War  in  Europe 
and  of  the  French  and  Indian  War  in  America,  France  was 
compelled  to  sacrifice  her  American  possessions.  She  ceded 
Louisiana  to  Spain.  Since  Spain  alread}'-  held  the  territory 
on  the  southwest,  it  was  of  little  moment  to  her  where  the 
boundary  line  was  fixed  between  her  old  and  her  new  posses- 
sions. In  1800  Spain  retroceded  Louisiana  to  France,  and 
in  1803  France  ceded  it  to  the  United  States.  The  western 
boundary  was  practically  undefined. 

Before  1819  some  Americans  had  attempted  to  establish 
colonies  in  Texas,  but  the  Spanish  government  slaughtered 
the  colonists,  and  broke  up  the  settlements.  In  1806  the 
Sabine  River  was  provisionally  agreed  upon  as  a  temporary 
boundary  between  the  Spanish  and  American  territory.  By 
the  treaty  with  Spain  in  1819,  by  which  we  acquired  Florida, 
the  Sabine  River  was  designated  as  the  true  boundary  be- 
tween the  two  jurisdictions.  Mexico  revolted  from  Spanish 
control  in  1821  and  declared  her  independence.  Texas  and 
Coahuila  together  were  organized  as  a  Mexican  state.  Mean- 
time, one  Moses  Austin  had  obtained  large  grants  of  land, 
and  about  1820  he  attempted  to  organize  a  settlement.  But 
so  many  of  the  people  who  were  attracted  thither  by  his 
promises  were  such  desperate  outlaws  that  the  Mexican  gov- 
ernment, in  1830,  was  constrained  to  forbid  any  more  Amer- 
icans coming  to  Texas.  Southern  statesmen  now  began  to 
fear  that  the  slave  power  would  ultimately  lose  its  equality  in 


168  CONSTITUTIONAL  HISTORY. 

the  number  of  states  in  the  Union  if  more  slave  territory- 
should  not  be  acquired,  and  they  lamented  the  easy  indiffer- 
ence with  which  our  plausible  claim  to  Texas  under  the  Lou- 
isiana purchase  had  been  flung  away.  Texas  was  compara- 
tively uninhabited.  About  15,000  Indians  were  supposed  to 
be  sprinkled  over  its  immense  expanse  of  territory.  A  few 
Spanish  missions  had  been  established.  A  few  Americans 
remained.  These,  freed  from  the  restraints  of  government 
and  civilization,  conformed  to  the  savage  life  of  the  Indians, 
and  sometimes  surpassed  them  in  wickedness  and  ferocity. 
The  Mexican  government  was  weak,  and  distracted  by  revolu- 
tionary convulsions.  Texas  seemed  to  be  one  of  the  fairest 
portions  of  the  earth  and  most  abandoned  by  mankind.  It 
attracted  the  cupidity  of  the  speculator,  and  land  companies 
were  organized  in  the  United  States.  They  claimed  to  have 
obtained  by  governmental  concessions  large  areas  of  fertile 
land,  and  they  sold  scrip  which  gave  promise  of  title  to  the 
townships  and  farms,  which  were  designated  upon  the  attrac- 
tive maps  of  the  companies.  Adventurers  procured  this  scrip 
and  hurried  to  Texas,  partly  to  speculate  in  their  supposed 
acquisitions,  and  partly  to  enjoy  the  wild  freedom  of  the 
plains.  Glowing  accounts  were  given,  not  altogether  desti- 
tute of  truth,  of  the  bounties  of  tropical  vegetation,  of  great 
herds  of  wild  horses  and  buffaloes,  and  of  the  abundance  of 
game.  Under  the  Mexican  government  slavery  was  prohib- 
ited within  its  limits. 

Among  others,  whose  imaginations  were  captivated  by  the 
charms  of  Texas,  was  Samuel  Houston.  His  career  was  like 
a  romance.  Born  in  Virginia,  he  spent  a  portion  of  his  youth 
as  an  adopted  member  of  the  Cherokee  tribe  of  Indians.  Es- 
caping thence  as  he  attained  his  majority,  he  studied  law  at 
Nashville,  served  as  lieutenant  under  General  Jackson  in 
some  of  his  Indian  wars,  and  became  successively  a  member  of 
Congress,  and  the  governor  of  Tennessee.  But  while  he  held 
the  latter  ofl&ce,  he  suddenly  resigned  and  returned  to  the 
tribe  of  his  early  adoption.  He  resumed  the  Indian  dress  and 
methods  of  life,  and  in  1833,  with  painted  face  and  the  garb 
of  his  tribe,  he  went  to  Texas.  But  he  had  previously  been 
to  Washington,  and  had  held  conference  with  men  in  high 


1 


ANNEXATION   OF  TEXAS.  169 

position,  with  the  speculators  in  Texas  lands,  and  with  states- 
men who  were  eager  to  reannex  that  abandoned  territory  to 
the  United  States.  It  soon  became  apparent  that  Houston's 
mission  was  to  direct,  as  circumstances  would  permit,  the 
nascent  commonwealth  on  the  way  to  annexation  to  the 
United  States.  Under  the  influences  which  he  stimulated  and 
fostered,  the  stream  of  emigration  began  to  set  its  current 
towards  the  Southwest.  Houston  was  soon  able  to  organize 
a  convention,  which  assumed  to  declare  the  independence  of 
Texas.  Mexico,  under  Santa  Anna,  attempted  to  subdue  this 
revolt  against  her  sovereignty,  but  in  the  battle  of  San  Jacinto, 
in  1836,  Houston  led  his  little  army  of  American  recruits 
against  the  Mexican  forces,  won  the  victory,  and  made  Santa 
Anna  his  prisoner.  Thenceforth  Texas  maintained  the  sem- 
blance of  an  independent  republic,  with  a  constitution  per- 
mitting slavery.  The  United  States,  which  had  secretly 
favored  the  movement,  in  1887  openly  acknowledged  her 
independence.  From  that  time  down  to  1845,  Texas  was  in- 
directly encouraged  by  our  government,  and  her  annexation 
seemed  to  be  near  at  hand.  But  Mexico  did  not  renounce 
her  claims  to  the  country,  and  it  was  plain  that  our  acquisi- 
tion of  Texas  would  cost  us  a  war.  Xk^  Slave  States  were 
willing  to  incui:  the  hazard.  The  purpose  of  the  acquisition 
being  apparent,  the  North  refused  to  consent. 

President  Tyler  was  anxious  to  accomplish  the  annexation, 
notwithstanding  the  opposing  attitude  of  the  North.  James 
K._Pplk:  was  nominated  for  the  presidency  as  the  avowed 
champion  of  annexation.  Circulation  was  given  to  the  fiction 
that  England  was  ready  to  intervene  in  favor  of  Texas  against 
Mexico,  upon  condition  that  Texas  would  abolish  and  prohibit 
slavery.  There  were  not  many  slaves  in  Texas,  and  the 
South  became  alarmed.  Clay  was  the  candidate  of  the  Whigs, 
and  did  not  object  to  annexation,  if  it  could  be  accomplished 
honorably  and  peacefully. 

The  anti- slavery  party  nominated  a  separate  candidate, 
and  diverted  votes  enough  from  Clay  to  elect  Polk.  Texas 
was  theii.9timexed  and  admitted  to  the  Union,  not  by  treaty, 
but  by  a,  joint  resolution  of  Congress,  which  proposed  terms 
and  offered  advantages  which  Texas  was  prompt  to  accept. 


170  CONSTITUTIONAL  HISTORY. 

This  was  an  irregular  exercise  of  power  under  the  Constitu- 
tion. Samuel  Houston  was  the  first  chosen  of  the  senators  of 
the  new  state. 

Under  the  administration  of  President  Polk,  the  war  with 
Mexico  followed.  Our  arms  were  successful,  our  claim  to 
Texas  established,  and  other  territory  wrested  from  Mexico. 
Thus  the  march  of  the  empire  of  freedom  went  westward  to 
the  Pacific  Ocean.  Time  glorifies  the  result,  and  gives  obliv- 
ion to  the  means.  The  slavery  question  henceforth,  and  until 
the  close  of  James  Buchanan's  administration,  dominated  over 
all  others.  The  constitutional  school  of  constructionists,  who 
taught  that  in  every  question  of  constitutional  power  between 
the  nation  and  the  state  the  doubt  should  be  resolved  against 
the  nation  and  in  favor  of  the  state,  following  the  teachings  of 
Mr.  Calhoun,  began  to  construe  the  Constitution  so  as  to  deny 
to  Congress  any  power  to  exclude  slavery  from  the  territories. 
The  question  was  of  vast  importance,  especially  in  view  of  the 
accession  of  the  immense  territory  gained  by  the  annexation 
of  Texas  and  by  the  Mexican  War. 

We  reserve  the  slavery  question  for  the  next  lecture.  Mr. 
Polk  served  only  one  term.  He  was  a  man  of  moderate 
ability,  with  a  strong  propensity  to  manage  his  administration 
with  the  least  possible  advice  from  others.  His  party  did  not 
care  to  renominate  him.  The  Whigs  now  came  into  power 
under  General  Taylor.  The  Mexican  War  had  made  Taylor 
available.  He  knew  next  to  nothing  about  civil  administra- 
tion, and  was  uncertain  before  his  nomination  of  his  own  polit- 
ical sympathies  ;  but  after  election,  he  felt  that  common  fair- 
ness required  him  to  stand  by  the  Whigs  and  their  measures. 
He  certainly  was  firmly  devoted  to  the  Union,  and  was  earnest 
in  his  assertions  that,  if  there  should  be  any  need,  he  would 
take  command  of  the  army  himself  to  preserve  it.  He  died  in 
the  second  year  of  his  administration  and  was  succeeded  by  the 
Vice-President,  Millard  Fillmore,  —  a  Whig  with  pro-slavery 
proclivities.  He  was  not  a  great  man.  We  need  not  dwell 
here  upon  the  administrations  of  Fillmore,  Pierce,  and  Bu- 
chanan. In  treating  of  the  slavery  question  we  shall  say  all 
that  is  needful. 

With  the  close  of  Buchanan's  administration  we  part  from 


DE  TOCQUEVILLE'S  PREDICTION.  171 

the  Jeffersonian  age  of  narrow  constitutional  construction, 
and  enter  upon  the  age  of  liberal  construction,  —  an  age  in 
which  the  legacy  of  the  teachings  of  Marshall  and  Webster 
becomes  incorporated  into  our  constitutional  life.  How  great 
the  slowly  pervading  influence  of  Marshall  finally  became 
will  be  explained  in  a  subsequent  lecture.  The  age  we  leave 
was  one  in  which  the  nation  practically  existed,  if  not  by  the 
sufferance  of  the  states,  at  least  by  the  concessions  of  the  na- 
tion to  their  jealous  protests.  The  age  we  enter  is  one  in 
which  the  nation  boldly  claims  her  own,  and  the  states  ac- 
knowledge the  claim.  The  just  self-respect  of  both  nation 
and  state,  and  the  confidence  which  each  has  in  the  reciprocal 
justice  and  support  of  the  other,  place  each  beyond  apprehen- 
sion from  the  other,  and  bind  all  together  as  respected  and 
respecting  members  of  a  vast  commonwealth.  There  is  a  gov- 
ernment of  the  United  States ;  there  is  a  government  of  the 
separate  states  ;  the  one  is  as  needful  as  the  other,  and  neither 
would  be  the  great  and  useful  government  that  it  is  without 
the  other. 

This  is  the  ripened  fruit  of  time  and  experience.  In  1833, 
De  Tocqueville,  that  philosophical  observer  of  our  institutions, 
said  in  his  "  Democracy  in  America  "  ;  — 

"  I  am  strangely  mistaken  if  the  federal  government  of  the  United 
States  be  not  constantly  losing  strength,  retiring  gradually  from  pub- 
lic affairs,  and  narrowing  its  circle  of  action.  It  is  naturally  feeble, 
but  now  it  abandons  even  the  appearance  of  strength.  On  the  other 
hand,  I  thought  I  remarked  a  more  lively  sense  of  independence,  and 
a  more  decided  attachment  to  their  separate  governments  in  the 
states.  The  Union  is  desired,  but  only  as  a  shadow  ;  they  wish  it  to 
be  strong  in  certain  cases  and  weak  in  all  others  :  in  time  of  warfare 
it  is  to  be  able  to  concentrate  all  the  forces  of  the  nation  and  all  the 
resources  of  the  country  in  its  hands ;  and  in  time  of  peace  its  existence 
is  to  be  scarcely  perceptible ;  as  if  this  alternate  debility  and  vigor 
were  natural  or  possible.  ...  It  may  be  predicted  that  the  govern- 
ment of  the  Union  will  grow  weaker  and  weaker  every  day." 

De  Tocqueville  saw  clearly  the  main  features  of  our  system 
as  operated  upon  a  narrow  national  and  a  broad  state  gauge. 
The  decay  of  the  nation  which  he  predicted  would  have  been 
inevitable  if    the  national  gauge  had  not  been   broadened. 


172  CONSTITUTIONAL  HISTORY. 

Under  the  policy  of  narrow  construction,  which  prevailed 
from  the  beginning  of  Thomas  Jefferson's  administration  until 
the  close  of  James  Buchanan's,  the  nation  was  scarcely  felt, 
except  in  our  foreign  relations  and  our  foreign  commerce. 
How  not  to  do  anything  was  the  study  of  the  dominant 
statesmen  in  Congress.  A  national  bank  was  twice  created, 
but  state  jealousy  would  not  suffer  it  to  live  beyond  its  ap- 
pointed limit  of  life.  Great  national  roads  and  other  internal 
improvements  were  projected,  but  state  jealousy  stifled  their 
existence.  The  African  slave-trade  was  declared  by  law  to 
be  a  crime,  but  a  nation,  intimidated  by  the  states,  never  pun- 
ished the  violators.  The  solemn  judgments  of  the  Supreme 
Court  were  more  than  once  thwarted  by  national  subserviency 
to  state  domination.  The  empire  west  of  the  Mississippi  was 
nearly  lost  by  a  too  narrow  construction  of  the  Constitution. 
We  point  with  just  pride  to  the  statesmen  of  that  time.  Clay, 
Webster,  and  Calhoun  were  great  senators.  But  they  con- 
structed nothing.  They  contended  like  giants  over  the  lim- 
itations of  the  Constitution.  But  of  what  great  measure  was 
either  the  founder  ?  Calhoun  may  have  a  claim  to  the  grati- 
tude of  posterity  for  his  services  in  the  annexation  of  Texas. 
We  owe  Webster  a  debt  of  gratitude  for  his  convincing  and 
valuable  exposition  of  the  true  construction  of  the  Constitu- 
tion,—  a  debt  which  posterity  is  loyally  paying.  Clay,  of  all 
the  long  line  of  our  statesmen  since  Hamilton,  had  the  most 
constructive  genius.  He  proposed  measures.  He  would  create, 
establish,  organize.  But  the  Constitution,  as  it  was  then  con- 
strued, stood  in  his  way  and  baffled  him  and  defeated  his 
measures.  No  fault  of  his  or  theirs.  Possibly  the  constitu- 
tional barriers  developed  their  powers.  It  was  an  age  of  the 
practical  settlement  of  constitutional  limitations.  Posterity 
is  the  wiser  for  their  efforts,  if  not  the  heir  of  their  measures 
achieved. 

The  constitutional  barrier  has  been  by  no  means  broken 
down  ;  it  has  been  pushed  out  in  some  directions  far  enough 
for  the  nation  to  defend  itself  and  to  exercise  a  fuller  meas- 
ure of  its  powers.  It  still  stands  in  the  way  of  all  construc- 
tive statesmen  who  seek  to  create  or  to  find  new  fields  for  the 
national  energy.     The  nation  can  never  do  the  work  of  the 


EFFECT  OF  CONSTITUTIONAL  RESTRAINTS.        173 

states,  nor  the  work  which  the  states  separately  are  compe-  i 
tent  to  do.  The  states  have  a  hundred  powers  to  the  nation's 
one.  Mr.  Seward  recognized  the  narrow  field  of  the  nation 
for  constructive  activity.  He  sought  to  rescue  his  name  from 
oblivion  by  making  Alaska  his  monument.  General  Grant, 
enduring  as  his  fame  seems  to  be,  turned  his  eyes  towards 
San  Domingo.  Mr.  Chase  revived  the  scheme  of  a  national 
bank,  and  expanded  it  into  a  great  system  of  national  banks. 
And  yet,  it  may  be  gravely  doubted,  whether  the  nation  has 
any  power  to  create  and  locate  a  corporation  within  a  state. 
The  usefulness  of  the  banking  system  as  a  domestic  agency 
perpetuates  it.  The  narrow  limits  imposed  by  the  Constitu- 
tion for  national  work  no  doubt  drew  to  the  slavery  problem 
an  increased  attention.  Congress  had  jurisdiction  over  the 
territories  and  over  the  District  of  Columbia,  and  the  right  to 
discuss  the  subject  within  conceded  limits  tempted  to  excur- 
sions into  the  fields  of  constitutional  exclusion. 

The  innovator  who  wishes  his  new  measure  to  be  adopted 
is  still  met  on  the  threshold  by  the  challenge  of  its  constitu- 
tionality, a  challenge  which  usually  sufiBces  to  drive  him  back- 
ward. The  youthful  statesman,  ambitious  of  a  career  of  dis- 
tinction, will,  if  he  enters  our  national  Congress  in  times  of 
peace,  find  his  highest  opportunity  for  usefulness  in  protecting 
the  people  from  unnecessary  taxation,  and  the  national  treas- 
ury from  wasteful  spoliation.  Common  sense  and  inflexible 
honesty  are  the  qualities  the  nation  needs  most.  If  he  pre- 
fers his  country's  interest  to  his  own,  he  will  not  regret  that 
the  nation  has  great  need  for  solid,  and  little  need  for  brilliant, 
qualities.  Nay,  he  will  find  cause  for  congratulation  in  the 
fact  that  the  early  contentions  are  settled,  and  the  government 
securely  reposes  upon  its  constitutional  powers  ;  that  it  is  not 
convulsed  by  spasms  of  threatened  revolution,  nor  disturbed 
by  apprehension  of  instability ;  that  it  performs  its  functions 
without  friction  or  tumult,  without  oppression  or  the  tread  of 
soldiery  ;  that  its  demands  are  few  and  just,  and  the  welfare 
of  its  people  the  chief  object  of  its  care ;  that  all  may  rely 
upon  its  protection  and  confide  in  its  justice. 

To  aid  in  the  administration  of  such  a  government  may  not 
present  a  field  for  ambitious  enterprise  or  constructive  energy. 


( 


174  CONSTITUTIONAL  HISTORY. 

The  pursuits  of  private  life  may  afford  more  opportunities  for 
such  qualities.  But  it  is  the  plain  duty  of  every  citizen  to  do 
j7hat  he  can  to  preserve  the  government  and  its  administra- 
tion from  decay  and  corruption,  to  correct  the  abuses  which 
creep  into  official  agencies,  to  counteract  the  selfish  schemes 
of  demagogues  and  thieves,  however  disguised  under  honest 
forms,  and  to  insist  that  in  politics  and  in  government  none 
but  honest  ends  by  honest  means  can  command  the  support 
of  honest  men. 


LECTURE  VIll. 

SLAVERY  IN  THE  UNITED   STATES. 

The  institution  of  Slavery  forms  a  curious  and  important 
chapter  in  our  history.  Four  months  before  the  Pilgrims 
landed  at  Plymouth,  slaves  had  been  landed  in  Virginia.  A 
Dutch  captain  commanded  the  Mayflower.  The  Pilgrims 
engaged  him  to  take  them  to  the  shores  of  Hudson's  River. 
But  the  Dutch,  fearing  thus  to  lose  that  territory,  bribed  him 
to  take  them  a  safe  distance  to  the  northward.  It  was  a 
Dutch  captain,  too,  who  first  brought  slaves  to  Virginia. 
Thus,  the  Dutch  were  the  carriers  of  the  institution,  and  of 
the  race  which  subverted  it.  Slavery  is  among  the  oldest  of 
human  institutions.  No  record  of  human  government  so  old 
but  that  slavery  is  yet  older.  The  Christian  religion,  after 
centuries  of  struggle,  becomes  its  final  conqueror.  The  con- 
quest would  not  have  been  so  long  delayed  but  for  the 
struggle  between  the  followers  of  Christ  and  of  Mahomet. 
The  Christian  religion  teaches  the  equality  of  all.  "  God  is 
no  respecter  of  persons."  "  As  ye  would  that  men  should 
do  to  you,  do  ye  even  also  to  them  likewise."  The  Mahom- 
etan religion  teaches  that  all  true  believers  are  equal  in  the 
eye  of  God  and  his  Prophet ;  that  all  others  are  infidels  and 
enemies,  fit  for  death  or  captivity.  Hence  to  hold  the  Chris- 
tian in  slavery  was  a  pious  duty.  The  Christian  felt  forced 
to  retahate,  and  when  the  follower  of  the  Crescent  became 
his  captive,  he  also  became  his  slave.  He  thus  punished  the 
enemy  of  the  Cross  and  enjoyed  the  spoil  of  Christian  con- 
quest. 

The  Mahometan  Moor  of  the  western  empire  was  not  slow 
to  suggest  to  his  Christian  conqueror  that  he  would  ransom 
himself  from  captivity  by  substituting  the  blackamoor,  the 
pagan  negro,  in  his  stead.    The  Christian  thought  it  better  to 


176  CONSTITUTIONAL  HISTORY. 

have  a  faithful  slave  than  a  treacherous  one.  Thus,  the  black- 
amoor became  the  coin  in  which  the  Mahometan  Moor  re- 
deemed himself  from  Christian  captivity.  And  the  negro, 
who  knew  naught  of  either  faith,  was  sacrificed  by  the  vota- 
ries of  one  to  appease  the  greed  and  vengeance  of  the  other. 

But  Christian  merchants  soon  found  that  they  could  cap- 
ture negroes  as  well  as  make  exchanges  for  them.  The  igno- 
rance and  helplessness  of  the  negroes  made  them  the  spoil  of 
mankind.  If  there  had  been  no  struggle  between  the  Cross 
and  the  Crescent,  it  is  possible  there  would  have  been  no 
slaves  in  America. 

Be  this  as  it  may,  the  framers  of  the  Constitution  found 
the  institution  in  existence,  recognized  by  law,  and  tolerated, 
if  not  sanctioned,  by  the  people  of  the  several  states.  Its  in- 
troduction was  in  violation  of  the  English  law ;  not  as  it  was 
then  understood,  but  plainly  so,  as  it  was  afterwards  ascer- 
tained. In  1771,  a  slave  named  Somerset  was  taken  by  his 
master  from  Virginia  to  England.  The  slave  refused  to  serve 
his  master  there.  A  writ  of  habeas  corpus  was  issued  by 
Chief  Justice  Mansfield,  and  the  question  whether  Somerset 
was  free  or  slave  was  brought  before  the  full  court.  The  court 
declared  him  free,  and  held  that  slavery  was  contrary  to  the 
laws  of  England,  because  positive  law  was  necessary  to  estab- 
lish a  condition  of  slavery,  and  England  had  made  no  such 
law.     This  decision  inspired  Cowper's  lines  :  — 

^       "  Slaves  cannot  breathe  in  England  ;  if  their  lungs 
Receive  our  air,  that  moment  they  are  free  : 
They  touch  our  country  and  their  shackles  fall."  ' 

By  the  common  law,  by  the  laws  of  England  which  the 
colonists  inherited,  by  the  limitations  of  their  charters  which 
forbade  them  to  make  any  laws  repugnant  to  the  laws  of  Eng- 
land, the  colonists  neither  had  nor  could  rightfully  make  any 
laws  sanctioning  slavery.  But  before  the  force  of  the  decision 
in  the  Somerset  case  could  be  fully  perceived,  or  effect  given 
to  it,  the  colonies  threw  off  their  allegiance  to  England  and 
became  sovereign  states.  Sovereign  states  could  legalize 
slavery. 

That  positive  law  was  necessary  to  authorize  slavery  was 
recognized  by  the  clause  in  the  fourth  article  of  our  Constitu- 


1 


INTRODUCTION  OF  SLAVERY.  177 

tion,  "  No  person  held  to  service  or  labor  in  one  state  under 
the  laws  thereof.''^  Slavery  was  first  established  in  this  country 
in  opposition  to  any  valid  law  ;  certainly  in  opposition  to  that 
natural  law  which  afiirms  the  equality  of  right  to  personal  lib- 
erty. The  English,  Dutch,  and  Spanish  were  slave-traders 
at  the  beginning  of  the  seventeenth  century.  Africa  was  the 
breeding-ground  of  slaves  ;  and  the  English,  French,  and  Span- 
ish kings  entered  into  treaties  to  assure  to  themselves  the  mo- 
nopoly of  this  traflBc.  In  these  treaties  negroes  were  spoken 
of  as  measurable  by  weight ;  thus,  a  ton  of  negroes^  as  we 
would  say  a  ton  of  iron  or  coal.  Spanish  colonization  pre- 
ceded the  English  upon  this  continent,  and  slavery  was  al- 
ready established  in  the  Spanish  settlements  when  the  Eng- 
lish colonization  began.  It  is  said  that  slaves  were  first 
introduced  into  the  English  colonies  from  Barbadoes.  In 
August,  1619,  a  Dutch  man-of-war  touched  at  a  settlement  in 
Virginia,  and  exchanged  twenty  slaves  for  provisions.  With 
kings  making  treaties  to  further  the  slave-trade,  with  slaves 
in  the  neighboring  Spanish  provinces,  and  with  the  desire  to 
obtain  cheap  labor,  it  probably  did  not  occur  to  the  colonists 
that  it  was  a  violation  either  of  law  or  of  morals  to  purchase 
these  savage  heathen,  and  compel  them  to  submit  to  the  dom- 
ination of  Christian  masters.  The  Levitical  law  declared : 
"  Both  thy  bondmen  and  thy  bondmaids,  which  thou  shalt 
have,  shall  be  of  the  heathen  that  are  round  about  you ;  of 
them  shall  ye  buy  bondmen  and  bondmaids."  The  further 
introduction  of  slaves  seemed  to  follow  as  the  result  of  lawful 
trade.  Thus,  slavery  was  at  first  permitted,  probably,  by  the 
indifference  of  feeble  communities,  afterwards  tolerated  by 
custom,  and  finally  sanctioned  by  colonial  law.  In  our  treaty 
with  Great  Britain  by  which  our  independence  was  acknowl- 
edged, the  phrase  occurs,  "  negroes,  or  other  property." 

We  should  be  unjust  if  we  judged  the  conduct  of  the  early 
colonists  by  the  moral  standards  of  the  nineteenth  century. 
The  slave,  as  he  was  brought  here  from  his  native  land,  seemed 
to  present  small  claims  to  be  considered  as  the  equal  in  right 
of  the  white  man.  He  had  the  form  of  a  man,  but  not  his  in- 
telligence. He  was  obedient  and  docile,  and  was  supposed  to 
rest  under  the  curse  denounced  against  Canaan  :  "A  servant 

12 


178  CONSTITUTIONAL  HISTORY. 

of  servants  shall  he  be  unto  his  brethren."  His  contact  with 
civilization  disclosed  his  latent  intelligence,  and  his  emotional 
nature  readily  yielded  to  the  teachings  and  influence  of  the 
Christian  religion.  When  the  slave  professed  Christianity, 
the  argument  which  condemned  the  heathen  to  bondage  was 
gone ;  and  when  the  white  man  became  the  parent  of  the 
Christian  mulatto,  the  argument  lost  half  its  support.  But 
selfishness  obviated  the  legal,  if  not  the  moral  difl&culty,  by 
procuring  the  enactment  of  laws  that  once  a  slave  always 
a  slave,  and  that  the  condition  of  the  negro  child,  whether 
free  or  slave,  should  follow  that  of  its  mother,  and  not,  as 
with  the  white  child  at  the  common  law,  the  condition  of  its 
father.  Thus  the  succeeding  generations  of  colonists  were 
constrained  to  tolerate  an  institution  which  developed  injus- 
tice and  cruelty,  not  foreseen  by  their  ancestors.  Their  mo- 
rality took  its  tone  from  the  conditions  they  inherited.  What- 
ever may  be  the  ideal  standard  of  morals,  the  practical  one 
must  be  largely  formed  by  the  conditions  of  its  time  and 
place.  The  nineteenth  century  closes  with  a  different  stand- 
ard from  the  one  with  which  it  opened.  The  century  began 
with  slavery  in  nineteen  English  colonies,  in  those  of  France, 
Holland,  Denmark,  and  Sweden,  and  in  the  Spanish  and  Por- 
tuguese colonies  of  South  America.  It  will  end  with  slavery 
abolished  in  most  of  them,  if  not  in  all.  Brazil  was  the  last 
American  nation  to  abolish  slavery.  This  was  done  in  1888. 
There  is  probably  now  more  slavery  in  Africa  than  upon  all 
the  other  continents.  The  colony  of  Rhode  Island  prohibited 
slavery  as  early  as  1652,  but  the  prohibition  was  long  practi- 
cally disregarded.  The  Quakers  in  Pennsylvania  protested 
against  it  in  1688.  The  Swedes  at  first  prohibited  it  in  Dela- 
ware, but  the  Dutch  admitted  it.  The  Duke  of  York's  char- 
ter for  New  York,  in  1665,  prohibited  the  slavery  of  Chris- 
tians, and  thus  by  implication  favored  that  of  heathens. 

Long  before  the  Declaration  of  Independence,  many  la- 
mented the  existence  of  slavery  as  both  a  wrong  and  a  disas- 
ter. Montesquieu,  in  the  early  part  of  the  eighteenth  century, 
eloquently  attacked  the  institution.  I  have  already  remarked 
the  high  estimation  in  which  his  precepts  of  political  science 
were  held  by  our  statesmen.     Jefferson  was  his  pupil,  but  he 


CONSTITUTIONALITY   OF   SLAVERY.  179 

was  also  convinced  by  Lis  own  observation  that  slavery  ought 
to  be  abolished,  and  he  made  no  concealment  of  his  convic- 
tions. In  the  original  draft  of  the  Declaration  of  Indepen- 
dence, Jefferson  wrote  the  following  charge  against  George 
the  Third  and  against  slavery  :  — 

"He  has  waged  cruel  war  against  human  nature  itself,  violating 
its  most  sacred  rights  of  life  and  liberty  in  the  persons  of  a  distant 
people  who  never  offended  him,  capturing  and  carrying  them  into 
slavery  in  another  hemisphere,  or  to  incur  a  miserable  death  in  their 
transportation  thither.  This  piratical  warfare,  the  opprobrium  of 
infidel  powers,  is  the  warfare  of  the  Christian  king  of  Great  Britain. 
Determined  to  keep  open  a  market  where  men  should  be  bought  and 
sold,  he  has  prostituted  his  negative  for  suppressing  every  legislative 
attempt  to  prohibit  or  restrain  this  execrable  commerce." 

This  paragraph  was  stricken  out  by  the  committee  before 
the  document  was  submitted  to  Congress.  It  would  have 
been  impolitic  for  the  convention  which  framed  the  Constitu- 
tion to  attempt  to  transfer  from  the  states  to  the  United 
States  the  control  of  the  institution  of  slavery.  It  was  re- 
garded as  a  domestic  institution,  to  be  regulated  or  prohibited 
by  every  state  in  the  exercise  of  its  own  reserved  sovereignty. 
Its  regulation  or  control  was  not  one  of  the  objects  for  which 
the  Constitutional  Convention  was  thought  to  be  necessary. 
Enough,  however,  was  said  in  the  convention  by  many  north- 
ern delegates  to  show  that  they  strongly  condemned  the  in- 
stitution. They  were  successful  in  keeping  the  word  "  slave  " 
out  of  the  instrument,  but  the  practical  effect  of  what  was 
put  in  it  was  to  strengthen  the  institution.  Mr.  Chief  Justice 
Taney,  speaking  for  the  majority  of  the  United  States  Su- 
preme Court,  in  1856,  in  his  opinion  in  the  celebrated  Dred 
Scott  case,^  said  :  — 

"  The  right  of  property  in  a  slave  is  distinctly  and  expressly 
affirmed  in  the  Constitution.  The  right  to  traffic  in  it  like  an  ordi- 
nary article  of  merchandise  and  property  was  guaranteed  to  the  citi- 
zens of  the  United  States,  in  every  state  that  might  desire  it,  for 
twenty  years.  And  the  government,  in  express  terms,  is  pledged  to 
protect  it  in  all  future  time  if  the  slave  escapes  from  the  master. 
And  no  word  can  be  found  in  the  Constitution  which  gives  Congress 

1  19  How.  393. 


180  CONSTITUTIONAL  HISTORY. 

a  greater  power  over  slave  property,  or  which  entitles  property  of 
that  kind  to  less  protection  than  property  of  any  other  description. 
The  only  power  conferred  is  the  power  coupled  with  the  duty  of 
guarding  and  protecting  the  owner  in  his  rights." 

These  assertions  of  the  Chief  Justice  were  based  upon  the 
provisions  of  the  Constitution  which  forbade  Congress  to  pro- 
hibit, prior  to  1808,  the  importation  of  slaves,  and  which  pro- 
vided that  "  no  person  held  to  service  or  labor  in  one  state, 
under  the  laws  thereof^  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged  from 
such  service  or  labor,  but  shall  be  delivered  up  on  claim 
of  the  party  to  whom  such  service  or  labor  may  be  due." 
As  "by  the  laws  thereof"  slavery  might  exist  in  any  state, 
and  as  there  was  reserved  to  the  states,  or  to  the  people,  the 
powers  not  delegated  by  the  Constitution  to  the  United 
States,  and  as  no  power  was  delegated  to  the  United  States 
to  interfere  with  the  state  laws  favoring  slavery,  it  followed 
that  the  United  States  could  do  nothing  to  prohibit  slavery 
in  any  state.  And  it  followed  that,  as  by  the  Constitution 
the  fugitive  slave  must  be  delivered  up,  Congress,  which  had 
power  "  to  make  all  laws  necessary  and  proper  for  carrying 
into  execution  all  powers  vested  by  the  Constitution  in  the 
government  of  the  United  States,"  had  power  to  make  the 
Fugitive  Slave  Law.  It  also  followed  that  the  general  gov- 
ernment under  the  Constitution  had  no  power  to  mitigate  the 
institution  of  slavery  in  the  states,  since  no  such  powers  were 
delegated  to  it,  but  did  have  power  to  make  the  condition  of 
the  slave  more  onerous  and  hopeless,  since  the  power  to  pass 
laws  to  cause  him  to  be  delivered  up  was  delegated  to  it. 
Because  it  was  so,  the  Abolitionists  were  sometimes  moved  to 
say  that  the  Constitution  was  a  "  covenant  with  Death  and 
an  agreement  with  Hell." 

Indeed,  the  provision  in  the  Constitution  for  the  delivering 
up  of  fugitive  slaves  escaping  from  one  state  into  another,  — 
from  a  state  where,  by  the  laws  thereof,  he  was  lawfully  a 
slave  to  a  state  where,  by  the  laws  thereof,  he  was  lawfully 
free,  —  was  one  of  the  strongest  commendations  of  the  instru- 
ment to  the  slave  owners.  It  gave  additional  security  and 
protection  to  their  property  in  slaves.     It  was  a  guarantee  of 


DENIAL   OF  RIGHTS  TO   THE  NEGRO.  181 

a  right  of  property  in  fugitive  slaves  wherever  they  might  be 
found  in  the  Union. 

Charles  C.  Pinckney  said,  in  the  convention  of  South  Caro- 
lina, in  advocating  the  ratification  of  the  Constitution,  "  We 
have  obtained  the  right  to  recover  our  slaves  in  whatever 
part  of  America  they  may  take  refuge  ;  which  is  a  right  we 
had  not  before."  It  is  significant  that  the  Articles  of  Con- 
federation said  nothing  upon  the  subject. 

I  venture  to  quote  still  further  from  the  same  opinion  of 
Chief  Justice  Taney.  He  was  contending  for  the  proposition 
that  the  negro  could  not  be  a  citizen  of  the  United  States, 
and  that  he  was  not  within  the  meaning  or  intent  of  any  of 
the  provisions  of  the  Declaration  of  Independence,  the  Arti- 
cles of  Confederation,  or  of  the  Constitution,  respecting  citi- 
zenship or  liberty.  Had  he  confined  his  remarks  to  the  slave 
instead  of  extending  them  to  all  persons  of  African  descent, 
the  denunciation  of  which  he  was  the  object,  from  18.57  down 
to  our  own  times,  would  probably  have  been  less  violent. 

"  It  is  difficult,"  he  said,  "  at  this  day  to  realize  the  state  of  public 
opinion  in  relation  to  that  unfortunate  race,  which  prevailed  in  the 
civilized  and  enlightened  portions  of  the  world  at  the  time  of  the 
Declaration  of  Independence,  and  when  the  Constitution  of  the 
United  States  was  framed  and  adopted.  They  had  more  than  a 
century  before  been  regarded  as  beings  of  an  inferior  order,  and  alto- 
gether unfit  to  associate  with  the  white  race,  either  in  social  or  polit- 
ical relations  ;  and  so  far  inferior  that  they  had  no  rights  which  the 
white  man  was  bound  to  respect,  and  that  the  negro  might  justly  and 
lawfully  be  reduced  to  slavery  for  his  benefit.  He  was  bought  and 
sold,  and  treated  as  an  ordinary  article  of  merchandise  and  traffic, 
whenever  a  profit  could  be  made  by  it.  This  opinion  was  at  that 
time  fixed  and  universal  in  the  civilized  portion  of  the  white  race. 
It  was  regarded  as  an  axiom  in  morals  as  well  as  in  politics,  which 
no  one  thought  of  disputing,  or  supposed  to  be  open  to  dispute ;  and 
men  in  every  grade  and  position  in  society  daily  and  habitually  acted 
upon  it  in  their  private  pursuits,  as  well  as  in  matters  of  public  con- 
cern, without  doubting  for  a  moment  the  correctness  of  this  opinion." 

Hear  Mr.  Madison,  in  the  forty-third  number  of  "  The  Fed- 
eralist." He  is  speaking  of  possible  domestic  violence,  and 
referring  to  that  provision  of  the  Constitution  which  requires 


182  CONSTITUTIONAL  HISTORY. 

the  United  States  to  guarantee  to  every  state  in  the  Union  a 
republican  form  of  government,  and  to  protect  it  from  inva- 
sion and  domestic  violence.  He  says  a  minority  of  citizens 
may  become  a  majority  of  persons  by  accessions  from  aliens 
and  others  not  admitted  to  suffrage,  and  adds :  — 

"  I  take  no  notice  of  an  unhappy  species  of  population  (meaning 
slaves)  abounding  in  some  of  the  states,  who,  duriug  the  calm  of  reg- 
ular government,  are  sunk  below  the  level  of  men  ;  but  who,  in  the 
tempestuous  scenes  of  civil  violence,  may  emerge  into  the  human 
character,  and  give  a  superiority  of  strength  to  any  party  with  which 
they  may  associate  themselves." 

This  is  a  remarkable  paragraph,  at  once  a  description  of  the 
slave  as  he  was,  and  a  prophecy  of  what  he  was  to  become. 

We  may  at  least  believe  that  at  the  time  of  the  adoption  of 
the  Constitution,  the  idea  had  not  entered  the  minds  of  the 
people  that  the  new  government  would  have  anything  to  do 
with  slavery,  except  to  suppress  the  slave-trade  after  1808, 
and  to  compel  the  return  of  fugitive  slaves.^ 

At  the  first  Congress  the  Pennsylvania  Society  for  promot- 
ing the  Abolition  of  Slavery  presented  a  petition  asking  that 
slavery  be  abolished.  This  petition  was  signed  by  Benjamin 
Franklin  as  president  of  the  society. 

Congress  replied  as  follows :  "  That  the  Congress  have  no 
authority  to  interfere  in  the  emancipation  of  slaves,  or  in  the 
treatment  of  them  in  any  of  the  states  ;  it  remaining  with 
the  several  states  alone  to  provide  any  regulations  therein 
which  humanity  and  true  policy  may  require."  The  same 
page  of  Benton's  "  Abridgment  of  the  Debates  of  Congress  " 
which  records  this  reply  of  Congress,  also  records  the  death 
of  Benjamin  Franklin.  Consistent  to  the  end,  this  steadfast 
friend  of  humanity  pauses  before  the  open  portals  of  death  to 
knock  in  behalf  of  the  slave  on  the  portals  of  freedom.  The 
Quakers,  and  others,  presented  similar  petitions  to  this  and 
subsequent  sessions  of  Congress,  but  it  never  receded  from 
its  first  reply. 

1  A  Boston  newspaper,  a  few  days  after  Washington's  first  inauguration,  re- 
minded the  Anti-Federalists  that,  under  the  new  Constitution,  two  runaway 
negro  boys  had  been  apprehended  in  that  city  and  returned  to  their  masters. 


FIRST  FUGITIVE  SLAVE  LAW.  183 

In  USSt  the  first  Fugitive  Slave  Law  was  passed.  About 
the  time  of  the  adoption  of  the  Constitution  a  colored  man 
was  seized  by  several  persons  in  Pennsylvania,  and  forcibly 
carried  into  Virginia  with  intent  to  enslave  him.  The  laws 
of  Pennsylvania  made  this  act  a  crime,  and  the  kidnappers 
were  indicted.  But  they  fled  to  Virginia  and  the  governor 
of  the  latter  state  refused  to  surrender  them.  The  corre- 
spondence between  the  governors,  and  the  papers  relating  to 
the  case,  were  transmitted  to  President  W^ashington  by  the 
governor  of  Pennsylvania  with  the  inquiry  how  the  consti- 
tutional provision  respecting  fugitives  from  justice  could  be 
made  effective.  The  President  laid  the  matter  before  Con- 
gress. The  result  was  that  bills  with  respect  to  fugitives 
from  justice  and  fugitives  from  slavery  were  passed.  No 
debate  occurred  in  the  House.  The  Senate  at  that  time  sat 
with  closed  doors,  and  whether  any  debate  occurred  there  is 
not  known.  Probably  there  was  none,  as  the  propriety  of 
giving  effect  to  the  constitutional  provision  could  not  well  be 
contested.  The  Fugitive  Slave  Bill  did  not  attract  public  at- 
tention till  long  afterwards.  It  provided  that  the  owner  of 
the  fugitive  might  seize  him  and  take  him  before  any  federal 
judge,  or  before  any  local  magistrate  of  the  state,  and  the 
magistrate  should  order  that  he  be  delivered  up  to  his  master, 
if  satisfied  that  the  master's  claim  was  valid.  Afterwards, 
when  public  sentiment  became  aroused,  it  was  objected  that 
the  state  officer  was  enjoined  by  the  United  States  to  perform 
certain  duties,  and  finally,  in  1842,  the  Supreme  Court  of  the 
United  States  substantially  held  that  Congress  had  no  power 
to  impose  or  require  any  official  service  of  a  state  officer. ^ 
Several  states  thereupon  passed  acts,  forbidding,  under  severe 
penalties,  the  rendition  by  their  officers  of  the  services  required 
by  this  act,  and  providing  that  the  fugitive  slave  should  have 
the  privilege  of  the  writ  of  habeas  corpus  and  of  trial  by  jury. 

It  was  the  hope  of  benevolent  men  in  the  earlier  years 
of  the  government  that  the  states  would  ultimately  abolish 
slavery  of  their  own  accord.  The  Northern  States  did  this  : 
Vermont  by  her  first  Constitution  in  1777,  Massachusetts  in 
1780,  and  New  Hampshire  in  1783.  Gradual  abolition  was 
1  Prigg  V.  Pennsylvania,  16  Peters,  539. 


184  CONSTITUTIONAL  HISTORY. 

ordained  by  Pennsylvania  in  1780,  by  Connecticut  and  Rhode 
Island  in  1784,  by  New  York  in  1799,  and  New  Jersey  in 
1804.     Slavery  wholly  ended  in  New  York  July  4,  1827. 

Societies  to  promote  gradual  abolition  were  formed  in  sev- 
eral of  these  states  near  the  close  of  the  last  century.  It  was 
hoped  that  the  same  influences  would  prevail  in  the  Southern 
States.  But  the  sudden  and  enormous  development  of  the 
production  of  cotton  made  slave  labor  so  profitable  that  self- 
ishness prevailed  over  humanity. 

In  1816  the  American  Colonization  Society  was  formed. 
Its  object  was  to  promote  emancipation  by  colonizing  the  free 
blacks  in  some  distant  colony,  and  to  remove  the  free  blacks 
from  the  slave  states.  The  Virginia  Legislature  in  1816  com- 
mended the  movement  to  the  favor  of  the  general  government. 
It  was  warmly  supported  by  Jefferson,  Madison,  Monroe, 
Clay,  and  other  eminent  men  at  the  South,  and  had  branches 
in  every  northern  state.  Under  its  patronage  was  formed 
the  colony,  now  the  Republic  of  Liberia,  on  the  western  coast 
of  Africa.  The  society  still  exists,  its  present  purpose  being 
to  help  sustain  the  feeble  but  interesting  Liberian  Republic. 
Its  influence  in  abolishing  slavery  was  the  indirect  one  of 
leading  many  of  its  members  through  the  gate  of  colonization 
into  the  fold  of  the  abolition  party. 

Of  the  thirteen  original  states  of  the  Union  seven  became 
free  and  six  slave  states.  Care  seems  to  have  been  taken  to 
admit  new  states  in  pairs,  one  free  and  one  slave.  Thus,  Ken- 
tucky and  Vermont,  Tennessee  and  Ohio,  came  in  nearly  to- 
gether. Louisiana,  carved  from  the  French  purchase,  restored 
equality.  Then  Mississippi  and  Indiana,  Alabama  and  Illi- 
nois, still  maintained  the  equilibrium.  Not  till  Missouri  in 
1818  applied  to  be  admitte4  as  a  slave  state  was  the  subject 
of  slavery  much  discussed,  and  then  finally  Maine  was  admit- 
ted as  the  companion  state.  Afterwards  Arkansas  and  Mich- 
igan, Florida  and  Iowa,  were  received  in  pairs,  one  slave  and 
the  other  free. 

Before  the  Constitution  was  adopted.  New  York,  Massachu- 
setts, Connecticut,  Virginia,  and  South  Carolina  ceded  to  the 
United  States  the  large  tracts  of  western  lands  to  which  they 
respectively  made  claim.     These  cessions  were  made,  both  to 


ORDINANCE   OF   1787.  185 

conciliate  the  other  states,  and  to  place  the  proceeds  of  their 
sales  at  the  disposal  of  the  United  States  in  payment  of  the 
debts  incurred  by  the  war. 

Virginia  surrendered  to  the  confederacy  all  her  claims  to 
the  territory  lying  northwest  of  the  Ohio  River.  On  the 
13th  of  July,  1787,  while  the  Constitutional  Convention  was 
in  session,  the  confederate  Congress  adopted  an  ordinance  for 
the  regulation  and  government  of  this  territory.  This  ordi- 
nance provided  that  when  the  population  would  justify  it,  the 
territory  should  be  formed  into  states,  not  less  than  three  nor 
more  than  five,  and  that  each  state  should  be  admitted  into 
the  Union  upon  the  same  footing  as  the  original  states.  It 
provided  that  there  should  be  neither  slavery  nor  involuntary 
servitude  in  the  territory  otherwise  than  as  punishment  of 
crimes.  This  ordinance  was  regarded  as  a  compact  between 
Congress  and  the  State  of  Virginia,  and  also  between  Con- 
gress and  the  people  who  should  thereafter  settle  in  the  ter- 
ritory. It  was  regarded  as  binding  upon  the  United  States, 
which  succeeded  to  the  obligation  of  the  confederacy,  and 
was  reenacted  by  the  first  Congress  under  the  Constitution. 
It  was  believed  to  be  inviolable. 

Practically  this  ordinance  had  the  force  of  a  constitutional 
enactment.  It  certainly  excluded  slavery  from  the  states 
northwest  of  the  Ohio,  and  its  moral  effect  was  constant  and 
wide-reaching.  It  signified  to  the  minds  of  many  that,  in  the 
early  judgment  of  the  states.  South  as  well  as  North,  slavery 
was  wrong  in  itself  ;  that  however  much  circumstances  might 
excuse  it  where  it  was  inherited,  the  area  of  its  existence  ought 
not  to  be  extended.  But  in  fact  the  legal  effect  of  the  ordi- 
nance was  feeble.  When  North  Carolina  came  into  the  Union 
in  1790,  she  ceded  to  the  United  States  the  territory  after- 
wards forming  the  State  of  Tennessee,  but  with  the  proviso, 
which  Congress  accepted,  "  that  no  regulations  made  or  to  be 
made  by  Congress  shall  tend  to  emancipate  slaves."  The  first 
Congress  soon  after  provided  for  the  government  of  the  terri- 
tory south  of  the  Ohio,  and  adopted  the  North  Carolina  proviso. 

The  Supreme  Court  in  the  Dred  Scott  case  declared  that 
the  Ordinance  of  1787  was  in  excess  of  the  powers  of  the  con- 
federacy, and  ceased  to  be  of  binding  force  upon  the  ratifica- 


186  CONSTITJJTIONAL  HISTORY. 

tion  of  the  Constitution.  This  declaration  of  the  court  was 
popularly  regarded  at  the  North  as  one  of  the  great  heresies  of 
that  famous  decision.  It  has,  however,  been  repeatedly  held 
by  the  court,  and  as  recently  as  1 886,1  that  upon  the  admis- 
sion of  any  part  of  the  territory  as  a  state  the  restraints  of 
the  ordinance  ceased  in  the  state. 

The  five  states  which  were  formed  out  of  the  Northwest 
Territory  came  into  the  Union  as  free  states  ;  but  the  territory 
south  of  the  Ohio  made  only  four,  namely  Kentucky,  Tennes- 
see, Alabama,  and  Mississippi.  Thus  the  Ohio  River  to  its 
junction  with  the  Mississippi  was  the  dividing  line  between 
slave  and  free  territory.  West  of  the  Mississippi  River,  at 
the  time  of  the  adoption  of  the  Constitution,  the  territory  be- 
longed to  Spain.  It  extended  to  the  main  range  of  the  Rocky 
Mountains,  and  possibly  further,  since  the  country  was  not 
then  sufficiently  known  to  give  it  a  precise  boundary,  except 
by  adopting  a  degree  of  longitude.  South  of  the  thirty-first 
parallel  of  latitude,  the  territory  from  the  Atlantic  to  the  Mis- 
sissippi then  also  belonged  to  Spain.  I  have  already  dataUed 
the  methods  by  which  we  acquired  these*lBei*rit6ries,  including 
Texas,  New  Mexico,  and  California. 
f  "The  Oregon  country  we  acquired  partly  by  discovery, 
partly  by  occupation,  and  finally  by  treaty.  In  the  same  year 
in  which  the  Constitutional  Convention  sat  in  Philadelphia, 
two  vessels,  the  Columbia  and  Washington,  were  sent  from  the 
port  of  Boston  by  a  company  of  adventurers,  to  circumnavi- 
gate the  globe,  explore  the  eastern  coast  of  the  Pacific,  trade 
with  the  savages  of  the  Sandwich  Islands,  and  with  the  mer- 
chants of  the  Celestial  Empire.  In  the  course  of  their  ex- 
ploration upon  the  Pacific  coast,  they  entered  the  mouth  of  a 
great  river,  which  we  now  know  has  its  head-waters  on  the 
western  slopes  of  the  Rocky  Mountains.  The  captain  named 
it  Columbia,  after  one  of  his  vessels.  This  is  the  foundation 
of  our  claim  to  our  possessions  upon  the  Pacific  coast.  Lewis 
and  Clarke,  in  1803,  under  the  patronage  of  President  Jeffer- 
son, explored  the  Columbia  River  from  its  sources  in  the  moun- 
tains to  its  mouth  upon  the  ocean.  In  the  Florida  treaty  of 
1819,  Spain  transferred  to  us  whatever  claim  she  had  to  the 

1  116  U.  S.  546. 


STATES  FROM  ACQUIRED  TERRITORY.  187 

northwest  coast.  If  France  ever  had  any  claim  she  sold  it 
to  us  in  our  Louisiana  purchase. 

John  Jacob  Astor  established  a  fur-trading  post  there  in 
1811.  England,  however,  contested  our  title.  She  claimed 
priority  of  discovery  of  the  country  tributary  to  the  Columbia 
River  on  its  northerly  side,  but  the  fact  was,  her  discoveries 
were  five  hundred  miles  north  of  that  river.  Mr.  Astor  was 
driven  out  in  the  War  of  1812,  and  the  Hudson's  Bay  Com- 
pany took  possession.  A  treaty  with  England  in  1818  allowed 
England  and  the  United  States  joint  occupation,  and  postponed 
the  boundary  question.  But  in  1846  our  title  was  recognized 
and  the  boundary  defined,  not  so  far  to  the  north  as  we  had 
claimed,  but  upon  the  forty-ninth  parallel.  This  parallel  was 
adopted  because  in  the  treaty  of  Utrecht,  made  between 
France  and  England  in  1713,  it  was  constituted  the  boundary 
between  the  English  and  the  French  possessions  west  of  the 
Lake  of  the  Woods,  then  the  westernmost  locality  known  east 
of  the  Pacific.  The  territory  of  Florida  and  that  vast  region 
extending  from  the  Mississippi  River  to  the  Pacific  Ocean  be- 
came part  of  the  United  States. 

In  1812,  the  State  of  Louisiana  was  admitted  into  the 
Union.  This  was  the  first  state  that  came  in  from  the  ac- 
quired territory.  That  an  additional  slave  state  was  proposed 
to  be  added  did  not  much  engage  public  attention.  Tjie 
Federalists  in  Congress  oppjosed  its  admission  upon  the  grounds 
that  the  Constitution  was  framed  and  the  Union  organized 
for  the  benefit  of  the  original  thirteen  states  and  of  the  states 
that  might  be  formed  out  of  the  territory  then  possessed  by 
the  United  States ;  not  including  any  that  might  thereafter 
be  acquired.  They  contended  that  the  framers  of  the  Consti- 
tution did  not  intend  that  the  original  states,  and  those  to  be 
formed  within  their  territory  as  then  possessed,  should  enter 
into  any  partnership  with  new  states  to  be  formed  out  of  con- 
quered or  ^purchased  territory ;  the  Constitution  was  for  the 
benefit  of  the  people  of  the  United  States,  not  of  Louisiana ; 
the  introduction  of  new  states  from  this  immense  western 
territory  would  result  in  overwhelming  the  original  states  by 
their  numbers,  power,  and  influence,  and  would  subject  the 
rights  and  liberties  of  the  old  to  the  power  and  consideration 


188  CONSTITUTIONAL  HISTORY. 

of  the  new ;  the  old  never  contemplated  such  a  union ;  they 
never  agreed  to  it ;  they  would  not  submit  to  it.  Mr.  Quincy 
of  Massachusetts  said  in  Congress :  "It  is  my  deliberate 
opinion  that  if  this  bill  passes,  the  bonds  of  this  Union  are 
virtually  dissolved  ;  the  states  which  compose  it  are  free  from 
their  moral  obligations ;  and  that,  as  it  will  be  the  right  of  all, 
so  it  will  be  the  duty  of  some,  to  prepare  definitely  for  a  sepa- 
ration, amicably  if  they  can,  violently  if  they  must."  The 
bill  passed.  A  territorial  government  was  also  framed  for  the 
country  lying  north  and  west  of  Louisiana. 

In  1818  the  people  of  this  territory,  lying  north  of  36°  30', 
applied  for  admission  as  a  state.  Slaves  already  existed  there. 
Its  eastern  boundary  extended  northward  along  the  Missis- 
sippi, far  above  its  junction  with  the  Ohio.  Thus,  if  slavery 
should  be  established  in  the  new  state,  it  would  go  northward 
upon  the  territory  acquired  from  France,  far  above  the  line 
which  marked  its  northern  limit  in  the  northwest  territory, 
east  of  the  Mississippi. 

It  was  moved  that  the  admission  of  Missouri  be  made  de- 
pendent upon  the  conditions  that  the  further  introduction  of 
slaves  be  prohibited,  and  that  all  slave  children  born  after  the 
admission  should  become  free  at  the  age  of  twenty-five.  The 
discussion  over  the  admission  was  prolonged  for  more  than  a 
year.  It  was  contended  on  the  part  of  the  prohibitionists, 
that,  under  the  provision  of  the  Constitution,  "  new  states 
may  be  admitted  by  Congress  into  this  Union  ;  "  that  the 
power  to  admit  implied  the  power  to  impose  the  conditions  of 
admission.  On  the  other  hand  it  was  contended  that  upon 
the  admission  of  a  state  it  became  the  equal  in  right  of  every 
other  state,  and  therefore  the  proposition  to  admit  a  state  was 
necessarily  a  proposition  to  admit  without  any  restriction 
whatever.  This  position  was  fortified  by  a  provision  of  the 
treaty  by  which  the  territory  of  Louisiana  was  acquired  by 
the  United  States.  This  declared  that  "the  inhabitants  of 
the  ceded  territory  shall  be  incorporated  in  the  Union  of  the 
United  States,  and  admitted  as  soon  as  possible,  according  to 
the  principles  of  the  federal  Constitution,  to  the  enjoyment  of 
the  rights  of  citizens  of  the  United  States."  Any  restriction 
upon  their  right  to  hold  slaves,  it  was  argued,  would  therefore 


WILLIAM  LLOYD   GARRISON.  189 

be  an  infringement  of  their  rights  under  this  treaty.  To 
which  the  reply  was,  that  the  right  to  hold  slaves  was  not  a 
right  of  a  citizen  of  the  United  States,  but  only  the  right  of 
the  citizen  of  such  states  as  "  by  the  laws  thereof "  allowed 
slavery.  Pending  the  discussion  Maine  applied  for  admission, 
and  the  South  determined  to  keep  Maine  out  unless  Missouri 
should  be  admitted  without  restriction.  It  was  finally  pro- 
vided as  a  compromise  of  the  difficulty  that  slavery  should  be 
prohibited  forever  north  of  36°  30'  in  the  territory  outside  of 
Missouri,  and  that  the  state"  be  admitted  without  restriction. 
This  compromise  prevailed,  and  many  supposed  that  the 
slavery  question  was  settled  forever. 

President  Monroe,  however,  hesitated  for  a  time  to  sign 
the  bill.  He  asked  his  cabinet  two  questions  :  First,  Has 
Congress  power  to  prohibit  slavery  in  a  territory  ?  Second, 
Does  the  term  "  forever  "  extend  beyond  the  territorial  condi- 
tion and  apply  to  the  subsequent  state?  The  cabinet  an- 
swered Yes  to  the  first  question,  and  divided  upon  the  second. 
The  question  was  then  changed  to  the  inquiry,  Is  the  bill 
constitutional  ?  which  all  answered  Yes,  and  thus  postponed 
the  disputed  question  to  the  next  generation. 

The  fact  was  that  the  discussion  of  the  Missouri  question, 
and  the  manner  in  which  it  was  disposed  of,  led  a  few  men  to 
think  deeply  upon  the  subject,  and  prepared  others  to  unite 
with  the  abolition  societies  which  were  subsequently  formed. 
The  pioneer  Abolitionist  was  one  Benjamin  Lundy.  The 
Missouri  question  stirred  him  profoundly.  In  1821  he  com- 
menced the  publication  of  an  abolition  paper  styled  the 
"  Genius  of  Universal  Emancipation."  He  was  moderate  in 
his  methods,  and  sought  by  moral  forces  to  achieve  the  free- 
dom of  the  slaves.  He  conceived  the  idea  of  finding  a  refuge 
for  them  in  Texas  or  Mexico,  and  colonizing  them  there.  In 
1829  William  Lloyd  Garrison  became  associated  with  him  as 
publisher  of  this  paper.  Garrison,  however,  soon  wearied  of 
the  moderate  methods  of  Lundy,  and  he  left  him  and  estab- 
lished "  The  Liberator."  The  tone  of  this  paper  was  ex- 
tremely radical.  It  took  the  position  that  slavery  was  a 
crime  ;  and  because  a  crime,  no  toleration  should  be  accorded 
it,  and  no  compromise  made  with  the  slave-holders,  whom  it 


190  CONSTITUTIONAL  HISTORY. 

denounced  as  criminals.  Garrison  had  the  quahties  of  which 
martyrs  are  made.  In  season  and  out  of  season,  in  spite  of 
mobs  who  threatened  his  life  and  destroyed  his  property,  he 
prosecuted  his  work ;  seeking  personal  safety  by  disguise,  by 
concealment,  by  voluntary  imprisonment  in  jail,  and  often  by 
flight,  he  cried  aloud  and  spared  not,  from  about  1836  to  the 
outbreak  of  the  civil  war.  Here  and  there  friends  began  to 
gather  around  him.  Some  were  convinced  by  his  arguments, 
others  yielded  to  his  exhortations  ;  some  were  gained  by  his 
lofty  spirit,  which  defied  danger  and  persecution,  others  by 
the  intolerance  which  denied  him  freedom  of  speech.  Many 
sympathized  with  him  in  secret,  and  wished  his  cause  the 
success  they  had  not  the  courage  to  avow.  A  few  northern 
pulpits  ventured  to  pray  that  the  slave  might  become  free. 
The  sinfulness  of  slavery  began  to  take  hold  of  men's  con- 
sciences. In  January,  1832,  the  New  England  Anti-Slavery 
Society  was  formed;  its  avowed  purpose  was  immediate  aboli- 
tion. In  December,  1833,  the  "  American  Abolition  Society  " 
was  formed.  Other  abolition  societies  followed.  The  term 
"  abolitionist "  was  used  by  their  enemies  as  a  word  of  re- 
proach. These  societies  met  with  the  condemnation  of  most 
of  the  churches,  of  the  magistrates,  the  legislators,  the  polit- 
ical parties,  and  of  the  mob.  Their  meetings  were  often  dis- 
persed by  violence.  Some  of  the  societies  were  as  radical  as 
Garrison  himself,  and  demanded  immediate  abolition  ;  others 
employed  more  moderate  methods  and  hoped  that  moral  and 
religious  influences  would  accomplish  the  result.  They  were 
often  reproached  because  of  their  omission  to  recommend 
compensation  to  the  owner  of  the  slave  for  his  loss  of  prop- 
erty. "Why  not  be  virtuous  at  your  own  expense?"  was 
often  sneeringly  asked.  Such  a  question  had  no  weight  with 
those  who  denounced  slavery  as  a  crime.  To  the  objection 
that  the  Constitution  sanctioned  slavery  in  every  state  whose 
laws  admitted  it,  the  answer  finally  was  made,  and  met  with 
wide  acceptance,  "  There  is  a  Law  higher  than  the  Constitu- 
tion." By  some  this  was  understood  as  referring  to  the  bind- 
ing force  of  the  Christian  religion,  which  taught  the  common 
brotherhood  and  equality  of  man.  With  others  the  argument 
was  that  the  Constitution  was  based  upon  the  Declaration 


DENIAL  OF  THE  RIGHT   OF  PETITION.  191 

of  Independence,  "that  all  men  are  created  equal  and  en- 
dowed by  their  Creator  with  certain  inalienable  rights ;  that 
among  these  are  life,  liberty,  and  the  pursuit  of  happiness  ; 
that  to  secure  these  rights  governments  are  instituted  among 
men."  The  Constitution  instituted  a  government  to  secure 
these  rights.  If  it  failed  to  express  this  security,  the  Decla- 
ration of  Independence,  the  higher  law,  supplied  it. 

The  South  took  alarm.  The  immediate  result  was  to  make 
the  condition  of  the  slave  more  deplorable.  The  South  began 
to  fear,  or  affected  to  fear,  that  one  of  the  purposes  of  the 
Abolitionists  was  to  provoke  an  insurrection  of  the  slaves,  and 
to  lead  them  to  seek  their  liberty  by  a  massacre  of  their 
white  masters.  Laws  were  passed  making  it  a  crime  to  teach 
the  slave  to  read,  forbidding  any  religious  meetings  among 
them  except  in  the  presence  of  slave-holders,  and  prohibiting 
the  circulation  of  any  anti-slavery  papers  through  the  mails. 
A  northern  man  known  to  be  opposed  to  slavery  found  it 
unsafe  to  appear  in  a  southern  state.  Petitions  were  con- 
stantly presented  to  Congress  in  behalf  of  the  slave.  The 
right  of  petition  is  recognized  by  the  first  amendment  to  the 
Constitution:  it  is  not  conferred  by  it,  but  Congress  is 
thereby  prohibited  from  abridging  the  existing  right.^  The 
right  to  present  a  petition  to  the  government  implies  the 
duty  on  the  part  of  the  government  to  receive  it.  This  duty 
Congress  recognized  until  1836.  In  that  year  the  petitions 
respecting  slavery,  and  especially  its  abolition  in  the  District 
of  Columbia,  over  which  Congress,  by  the  Constitution,  had 
exclusive  jurisdiction,  became  very  numerous,  and  were  so 
offensive  to  the  southern  representatives  that  the  House  was 
induced  to  pass  a  resolution  that  all  such  petitions  should  be 
referred  to  a  select  committee,  with  instructions  to  report  that 
Congress  could  not  interfere  with  slavery  in  the  states,  and 
ought  not  to  do  so  in  the  District  of  Columbia.  This  was 
a  practical  refusal  to  consider  the  petitions.  John  Quincy 
Adams  was  a  member  of  the  House,  and  he  opposed  the 
"g^gj"  as  it  was  called,  with  all  his  force. 

The  effect  of  the  gag  was  to  multiply  the  petitions.  But 
the  House  adhered  to  its  resolution  ;  making  it  stronger  in 

1  See,  however,  Cruikshank's  case,  92  U.  S.  542. 


192  CONSTITUTIONAL  HISTORY. 

succeeding  Congresses.  In  1840  it  adopted  a  rule,  famous  as 
the  "  twenty-first  rule,"  by  which  it  declared  that  no  petition, 
memorial,  resolution,  or  other  paper,  praying  the  abolition  of 
slavery  in  the  District  of  Columbia  or  in  the  territories,  or  of 
the  interstate  slave-trade,  should  in  the  future  be  received  by 
the  House,  or  entertained  in  any  manner  whatever.  The 
petitions  which  flowed  into  Congress,  and  which  Mr.  Adams 
usually  presented,  for  the  repeal  of  this  rule,  were  vast  in  the 
number  of  signatures.  For  nearly  ten  years  Mr.  Adams, 
with  the  ever  increasing  support  of  the  people,  struggled  for 
its  repeal.  He  was  a  foe  whom  few  wished  to  encounter  in 
debate,  and  he  worthily  bore  the  distinction  of  the  "  old  man 
eloquent."  In  1844  the  twenty-first  rule  was  repealed.  The 
excitement  which  this  needless  violation  of  the  Constitution 
had  created  brought  great  strength  to  the  abolition  move- 
ment. Agitation  was  its  life  and  support.  In  1840  the 
anti-slavery  party  cast  only  6,745  votes  for  its  presidential 
candidate.  In  1844  the  same  party  cast  58,879,  enough  to 
secure  the  defeat  of  Mr.  Clay,  and  the  election  of  Mr.  Polk. 
The  agitation  over_the  denial  of  the  right  of  petition  was  one 
cause  of  the  increased  vote  ;  the  proposal  to  annex  Texas  and 
thus  extend  the  area  of  slavery  was  another. 

Bbtli  parties,  the  whig  and  democratic,  sujj^orted  shivery. 
The  northern  members  defended  the  institution  upon  consti- 
tutional grounds ;  the  southern  added  moral  and  scriptural 
grounds.  The  South  was  in  earnest  in  defence  of  its  prop- 
erty and  institutions  ;  the  North  was  complaisant  and  calculat- 
ing, regardful  of  political  expediency  and  success.  The  ac- 
quisition of  Texas,  and  of  the  territory  gained  through  the 
Mexican  War,  was  promoted  by  the  South  and  by  southern 
sympathizers  in  order  to  give  to  slavery  territory  enough  to 
enable  it  to  bring  into  the  Union  one  slave  state  south  of 
36°  30'  as  often  as  a  free  state  came  in  from  territory  north 
of  that  line. 

This  concession  of  new  territory  to  slave  extension  met 
with  a  determined  resistance.  While  the  Mexican  War  was 
in  progress,  President  Polk  asked  Congress  to  place  $2,000,- 
000  at  his  disposal,  to  be  used  in  negotiating  peace..  A  bill 
to   that   effect   was   introduced   in    Congress.     Mr.  Wilmot 


ADMISSION  OF  CALIFORNIA.  193 

moved  a  proviso,  "  That  it  be  an  express  and  fundamental 
condition  to  the  acquisition  of  any  territory  from  Mexico  that 
neither  slavery  nor  involuntary  servitude  shall  ever  exist 
therein."  This  motion  convulsed  the  country,  but  was  ulti- 
mately lost.  This  was  the  famous  "  Wilmot  Proviso."  The 
pro-slavery  leaders  asserted  their  willingness  to  extend  the 
Missouri  Compromise  line  of  36°  30'  to  the  Pacific  Ocean.  It 
seemed  at  the  close  of  the  Mexican  War  that  slavery  had 
gained  that  area  for  its  extension  which  would  suffice  to 
secure  to  it  full  political  dominion  over  the  nation.  But  with 
Texas  it  gained  its  last  state.  It  finally  lost  all  because  it 
asked  too  much. 

In  1848  gold  was  discovered  in  California.  The  tide  of 
adventurers  poured  in.  They  had  no  slaves  to  take  with 
them  and  no  desire  to  acquire  any.  In  less  than  a  year  the 
newly  gathered  people  outnumbered  the  population  of  some 
of  the  smaller  states.  They  organized  a  state  government 
with  an  anti-slavery  constitution,  and  demanded  admission 
into  the  Union.  True,  the  greater  part  of  the  proposed  state 
lies  north  of  36°  30',  but  its  climate,  tempered  by  the  Pacific 
Ocean,  is  of  rare  mildness.  If  any  part  of  the  newly  ac- 
quired territory  should  be  opened  to  slavery,  it  seemed  that 
California  was  the  part  best  suited  for  it.  If  California  re- 
pelled slavery,  there  was  small  hope  that  the  remainder  of 
the  new  territory  would  embrace  it.  Congress  debated  for 
ten  months  over  the  admission  of  California.  The^  threat- 
ened  inequality  in  numbers  of  the  free  and  slave  states  was 
the  central  subject  of  contention,  and  the  Union  seemed 
again  in  danger  of  disruption.  A  compromise,  as  it  was 
called,  was  again  effected.  California  came  in  without  slavery 
on  theone  hand,  and  a  new  Fugitive  Slave  Law  was  passed 
on  the  other.  The  slave-trade  was  abolished  in  the  District 
of  Columbia ;  but  governments  were  provided  for  Utah  and 
New  Mexico  without  expressing  any  privilege  or  restriction 
respecting  slavery.  On  the  one  hand  it  was  urged  that  the 
laws  of  nature  would  be  effective  to  exclude  slavery ;  on  the 
other  it  was  claimed  that  the  Constitution  by  its  own  vigor 
permitted  its  extension  there,  and  would  protect  it  when  es- 
tablished.    Texas  was  shorn   of   her  territory  north  of  36° 


194  CONSTITUTIONAL  HISTORY. 

30',  and  was  paid  810,000,000  for  it.  Texas  wanted  money 
to  pay  her  debts,  and  the  North  was  expected  to  consent  to 
the  payment,  if  it  obtained  more  free  territory  in  exchange. 
About  this  time  our  Oregon  boundary  was  settled  with  Eng- 
land. We  had  been  strenuous  in  our  demand  that  54°  40' 
was  the  true  line,  but  the  forty-ninth  parallel  was  accepted ; 
the  more  readily  by  the  administration,  it  was  said,  lest  an- 
other free  state  should  be  carved  out  of  the  territory.  The 
South  conceived  that  it  lost  more  than  it  gained  by  the  com- 
promise. Iowa  was  admitted  in  1846,  and  Wisconsin  in 
1848.  By  the  admission  of  California  the  plan  for  restoring 
the  equality  between  free  and  slave  states  was  destroyed. 
But  the  nation  and  all  the  states  were  made  protectors  of 
slavery.  The  North  was  especially  dissatisfied  with  the  new 
Fugitive  Slave  Law. 

That  a  fugitive  slave  law  was  within  the  constitutional 
competency  of  Congress  seems  to  be  clear  from  the  provision 
of  the  Constitution  that  the  fugitive  "  shall  be  delivered  up 
on  the  claim  of  the  person  to  whom  such  service  or  labor  may 
be  due."  The  general  rule  is  that  it  is  competent  for  Con- 
gress to  give  effect  by  law  to  every  constitutional  provision 
which  is  not  self-executing,  and  requires  affirmative  action. 
Nevertheless,  respectable  jurists  contended  that  this  partic- 
ular provision  enjoined  action  upon  the  several  states,  and 
not  upon  Congress.  The  North  exclaimed  with  anger  and 
indignation  against  the  harsh  and  unusual  provisions  of  this 
particular  law.  It  provided  that  the  question  whether  the 
fugitive  negro  was  a  slave  should  be  tried  by  a  commissioner 
and  not  by  a  jury ;  that  the  commissioner  might  receive  affi- 
davits in  evidence,  but  could  not  receive  the  testimony  of  the 
fugitive  ;  the  privilege  of  the  writ  of  habeas  corpus  was  de- 
nied. Any  citizen  might  be  compelled  to  assist  in  the  capture 
and  return  of  the  fugitive.  The  commissioner  was  allowed  a 
fee  of  ten  dollars  if  he  found  the  fugitive  to  be  a  slave,  and 
only  five  dollars  if  he  declared  him  a  freeman.  Wherever 
the  execution  of  this  law  was  attempted  at  the  North,  great 
excitement  prevailed  ;  sometimes  violence  protected  the  fugi- 
tive from  a  return  to  slaverj^,  and  sometimes  armed  force 
compelled  his  return. 


THE  NEBRASKA   BILL.  195 

The  so-called  compromise  measures  were  proclaimed  by 
both  the  whig  and  democratic  parties  as  a  "  finality,"  and 
they  greatly  applauded  them  as  laying  forever  at  rest  the  dis- 
turbing question  of  slavery.  In  the  presidential  election  of 
1852,  the  two  parties  vied  with  each  other  in  congratulating 
the  country,  meaning  the  voters,  that  peace  had  come  by  the 
wise  concession  of  all  sections.  They  concurred  in  predicting 
or  threatening  that  any  attempt  to  reopen  the  questions  set- 
tled by  the  compromise  would  meet  with  the  severest  polit- 
ical reprobation.  The  anti-slavery  vote  was  much  reduced. 
The  South  believed  that  the  democratic  party  made  these 
professions  with  more  sincerity  than  the  Whigs,  and  in  this 
the  South  discerned  correctly.  The  result  was,  the  demo- 
cratic party  triumphed  in  the  election  of  President  Pierce, 
and  the  whig  party  ceased  to  exist. 

This  party  came  into  existence  to  oppose  Andrew  Jack- 
son, and  to  promote  the  prevalent  economic  views  respecting 
the  national  bank,  protective  tariff,  and  internal  improve- 
ments. It  was  a  property  party,  useful  in  times  when  indus- 
trial and  moneyed  interests  were  paramount,  but  insignifi- 
cant in  the  presence  of  a  great  moral  agitation. 

It  is  not  improbable  that  the  final  solution  of  the  slavery 
question  would  have  been  long  postponed,  despite  the  grow- 
ing strength  of  the  anti-slavery  party,  had  not  the  South 
conceived  the  expedient  of  abolishing  the  Missouri  Compro- 
mise restriction,  and  thus  of  gaining  from  northern  territory 
the  equivalent  for  the  lost  state  of  California.  In  1854,  a 
bill  to  provide  for  the  territorial  government  of  Nebraska  was 
pending.  Nebraska  was  imperial  in  the  extent  of  her  do- 
main. The  word  Nebraska  signifies  the  country  of  broad 
rivers.  The  sources  of  the  Missouri  were  along  her  western 
and  northern  limits,  and  that  great  river  flowed  within  her 
territory  for  more  than  two  thousand  niiles  before  it  reached 
her  eastern  boundary,  and  then  for  five  hundred  miles  further 
it  formed  a  part  of  that  boundary.  The  Missouri,  the  Platte,' 
the  Yellowstone,  and  the  Arkansas,  with  their  numerous 
tributaries,  seemed  to  justify  her  Indian  name.  The  terri- 
tory was  greater  in  extent  than  that  of  all  the  free  states 
east  of  the  Mississippi.     Aside  from  its  hunting  posts,  it  was 


196  CONSTITUTIONAL  HISTORY. 

uninhabited  by  white  men.  There  was  no  special  urgency 
for  a  territorial  organization,  and  previous  bills  for  the  like 
purpose  had  failed  to  become  laws.  These  bills  had  been  in 
the  form  usual  in  such  cases,  and  had  expressly  recognized 
the  Missouri  Compromise  restriction  with  regard  to  slavery. 
All  of  this  territory  lay  north  of  36°  30',  and  slavery  was 
therefore  excluded  from  it.  Mr.  Douglas,  a  senator  from 
Illinois,  and  chairman  of  the  committee  upon  territories,  in 
1854  reported  a  bill  for  its  government.  This  bill  declared 
that  when  the  territory  came  to  be  admitted  as  a  state,  such 
admission  should  be  had  regardless  of  the  question  whether 
its  constitution  permitted  or  prohibited  slavery.  Great  ex- 
citement followed  the  report  of  the  bill.  That  its  object  was 
to  permit  the  introduction  of  slavery,  notwithstanding  the 
Missouri  restriction,  was  obvious.  It  was  probable  that  if  it 
should  pass,  the  free  population  of  the  North  would  flow  into 
the  northerly  portion,  and  would  outnumber  the  people  who 
would  be  attracted  from  the  South  to  the  more  southerly 
portion.  Mr.  Douglas  by  an  amended  bill  therefore  divided 
the  territory  into  two  portions,  and  gave  the  name  of  Kan- 
sas to  the  more  southerly.  The  whole  of  the  eastern  boun- 
dary of  Kansas  adjoined  the  western  boundary  of  Missouri. 
It  was  said  that  there  was  not  a  white  man  living  in  Kansas 
at  that  time.  The  amended  bill  was  ultimately  so  framed  as 
to  repeal  the  Missouri  Compromise  restriction,  and  to  declare 
its  meaning  to  be  "  not  to  legislate  slavery  into  any  territory 
or  state,  nor  to  exclude  it  therefrom ;  but  to  leave  the  people 
thereof  perfectly  free  to  form  and  regulate  their  domestic  in- 
stitutions in  their  own  way,  subject  only  to  the  Constitution 
of  the  United  States." 

It  was  thought  that,  under  this  bill,  while  the  territorial 
condition  existed,  slavery  could  not  be  excluded,  for  the  rea- 
son that  the  congressional  restriction  was  withdrawn,  and 
that  the  power  given  to  the  people  to  form  and  regulate  their 
domestic  institutions  would  be  regarded  as  referring  to  their 
action  when  they  came  to  form  the  state  constitution ;  and 
the  implication  was  strong  that  "  subject  only  to  the  Consti- 
tution of  the  United  States  "  was  inserted  in  expectation  that 
the  Supreme  Court  would  decide,  if  the  proper  case  should  be 


THE  REPUBLICAN  PARTY.  *  197 

brought  before  it,  that  neither  Congress  nor  the  territorial 
legislature  had  the  constitutional  power  to  exclude  slavery. 
In  the  North  this  bill  created  intense  excitement.  Neverthe- 
less, it  became  a  law.  All  other  political  questions  became 
secondary  to  the  absorbing  slavery  question.  Mr.  Seward  de- 
clared that  between  slavery  and  freedom  there  was  and  must 
be  an  "  irrepressible  conflict."  Mr.  Lincoln  said  "  the  govern- 
ment cannot  endure  permanently,  half  slave  and  half  free.  It 
will  become  all  one  thing  or  all  the  other." 

Meanwhile  "  Uncle  Tom's  Cabin  "  appeared.  This  was  a 
novel  in  which  some  of  the  odious  features  of  slavery  were 
woven  by  genius  and  passion  into  a  tale  of  fiction.  This  book 
was  a  revelation  and  the  fomenter  of  a  revolution.  It  brought 
tears  to  the  eyes  of  children,  and  conviction  and  resolution  to 
the  hearts  of  men  and  women.  It  made  hatred  to  slavery  a 
sentiment  and  a  duty.  It  hastened  the  ripening  of  the  grow- 
ing demand  for  its  final  abolition.  Except  the  Bible,  no  book 
has  been  printed  in  so  many  languages,  or  read  by  so  many 
people  in  one  generation. 

The  republican  party  was  formed  out  of  the  northern 
members  of  the  whig  and  democratic  parties  who  opposed 
the  Kansas-Nebraska  bill.  The  Republicans  did  not  take  the 
position  of  the  Abolitionists,  although  they  had  the  benefit  of 
their  support.  They  took  the  position  that  they  did  not  war 
against  the  constitutional  existence  of  slavery,  but  against  its 
territorial  extension  ;  though  it  might  lawfully  exist  in  the 
states  under  the  Constitution,  yet  Congress  had  the  power  to 
exclude  it  from  the  territories,  and  that  that  power  should  be 
used  ;  that  the  repeal  of  the  Missouri  Compromise  was  a  crim- 
inal breach  of  faith  ;  that  slavery  could  only  exist  by  virtue 
of  positive  law  ;  and  that  Congress  should  prohibit  its  exist- 
ence everywhere  except  in  the  states  ;  that  the  Fugitive  Slave 
Law  should  be  repealed. 

The  new  party  was  the  stronger,  because  not  committed  to 
the  extreme  views  and  measures  of  the  Abolitionists.  The 
Kansas  and  Nebraska  scheme  really  rested  upon  the  premise 
that  Congress  had  no  constitutional  right  to  exclude  slavery 
from  the  territories.  The  argument  was  that  the  power  was 
not  expressly  conferred,  and  was  denied  by  plain  implication. 


198  CONSTITUTIONAL  HISTORY. 

The  territories  were  the  common  property  of  the  whole  United 
States,  and  were  held  for  the  equal  benefit  of  the  people  of 
every  state,  and  therefore  no  law  could  be  passed  prohibiting 
the  people  of  any  state  from  taking  their  property  and  enjoy- 
ing it  there,  whether  that  property  was  slave  or  of  other  kind, 
since  such  a  law  would  discriminate  against  the  owners  of 
slave  property ;  and  hence  the  Missouri  Compromise  restric- 
tion was  unconstitutional,  and  any  other  would  be. 

It  was  probably  a  sufficient  answer  to  this  position  to  assert 
that  slaves  are  not  property  per  se,  but  only  by  force  of  the 
law  of  the  state  where  they  are  held  in  servitude,  and  when 
the  slave  is  separated  from  the  state  whose  law  makes  him  a 
slave,  he  reverts  to  his  natural  condition  of  freedom ;  and  that 
to  compel  him  to  be  a  slave  in  a  new  territory,  the  law  of  that 
territory  must  so  declare,  and  hence  no  slave  can  be  continued 
as  a  slave  in  any  territory  of  the  United  States,  unless  the  law 
of  or  for  a  territory  so  declares.  What  the  law  shall  be,  it  is 
for  Congress,  as  the  regulator  of  the  territory,  to  declare,  and 
Congress  may  declare  either  way,  and  hence  can  admit  or  ex- 
clude slavery  from  the  territories.  Under  the  Missouri  Com- 
promise Congress  was  honorably  bound  not  to  admit  slaves 
north  of  36°  30'. 

The  Constitution  vests  in  Congress  the  power  "  to  dispose 
of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  of  the  United  States ; "  but  it  was 
said  by  the  friends  of  the  bill  that  this  provision  only  related 
to  territory  belonging  to  the  United  States  at  the  time  of  the 
adoption  of  the  Constitution  ;  and  moreover  it  did  not  con- 
template the  government  of  territory,  but  the  sale  or  other 
regulation  of  it ;  that  the  provision  speaks  of  "  territory  or 
other  property  "  of  the  United  States  to  be  disposed  of,  and 
in  no  way  confers  upon  Congress  the  power  to  govern  the 
territory.  This  view  of  this  provision  of  the  Constitution 
was  sanctioned  by  the  majority  of  the  United  States  Supreme 
Court  in  the  celebrated  Dred  Scott  case. 

The  South  underestimated  the  danger  to  the  slavery  cause 
arising  from  the  fact  that  the  constitutional  position  taken 
by  the  republican  party  opened  so  easy  a  door  to  the  union 
of  all  anti- slavery  elements,  without  at  all  committing  the 


STRUGGLE  OVER  KANSAS.  199 

party  to  the  extreme  positions  of  the  Abolitionists.  The  Re- 
publicans said  they  did  not  oppose  slavery  in  the  states  where 
the  Constitution  permitted  its  existence ;  that  they  only  op- 
posed its  extension  into  the  territories  where  the  Constitution 
permitted  its  restriction.  But  the  argument  against  the  ex- 
tension of  slavery  was  practically  and  really  the  argument 
against  slavery  itself,  and  as  that  argument  increased  in  fre- 
quency and  intensity  on  the  part  of  the  North,  the  exaspera- 
tion of  the  South  increased. 

In  1856  Mr.  Sumner,  a  distinguished  and  eloquent  senator 
from  Massachusetts,  made  a  speech  in  the  Senate  against 
slavery,  and  the  attempt  to  extend  it,  and  he  chose  to  de- 
nounce the  latter  as  "  the  crime  against  Kansas."  This 
speech  gave  personal  offence  to  a  senator  and  representative 
from  South  Carolina.  The  representative,  a  Mr.  Brooks, 
whilst  Mr.  Sumner  was  seated  in  his  place  in  the  senate 
chamber,  struck  him  violently  upon  the  head  with  a  cane. 
Mr.  Sumner  suffered  for  years  from  the  effects  of  this  out- 
rage. But  the  blow  had  wider  effects ;  it  helped  to  increase 
and  consolidate  the  rising  North  against  the  existence,  as 
well  as  the  extension,  of  slavery.  Thus  the  consequences  of 
the  republican  position  were  practically  the  same  as  if  the 
party  had  adopted  the  most  ultra  views  of  the  Abolitionists. 
The  Republicans  advanced  with  the  contest  and  became  the 
assailants  of  slavery  wherever  it  was  practicable  to  strike  it. 
They  professed  obedience  to  the  Constitution,  but  it  was  ob- 
vious that  the  contest,  which  was  rapidly  assuming  all  the 
aspects  and  fierceness  of  a  religious  war,  could  only  end  in 
bloodshed  or  by  the  subversion  or  amendment  of  the  Consti- 
tution. 

The  Kansas-Nebraska  bill  having  become  a  law,  the  Repub- 
licans and  Abolitionists,  defeated  in  Congress,  determined  to 
wage  the  contest  in  the  territory  itself,  and  if  possible  snatch 
the  victory  from  the  pro-slavery  party.  The  law  permitted 
the  people  of  the  territory  to  regulate  their  domestic  institu- 
tions in  their  own  way.  New  England  rose  to  the  contest, 
and  organized  emigrant  aid  societies.  Money  was  freely  con- 
tributed, and  resolute  men  from  Maine  to  the  Mississippi 
River,  carrying  rifles  on  their  shoulders  or  among  their  house- 


200  CONSTITUTIONAL  HISTORY. 

hold  goods,  began  to  flock  into  Kansas.  The  pro-slavery 
people  took  alarm,  and  they  too  became  vigilant  and  active. 
They  had  the  vantage-ground  of  the  adjoining  slave  state  of 
Missouri,  and  could  add  to  the  forces  gathered  from  distant 
states  accessions  when  needed,  by  temporary  migrations  over 
the  border.  Kansas  became  the  field  of  strife  and  bloodshed 
between  the  parties,  who  devoted  themselves  to  proposing  con- 
stitutions and  fighting  each  other.  It  is  not  needful  to  enter 
into  details.  After  six  years  of  contest  in  Kansas,  in  Con- 
gress, and  in  the  nation,  victory  passed  to  the  side  of  the  anti- 
slavery  party,  but  not  until  after  the  election  of  Mr.  Lincoln. 
Upon  the  withdrawal  of  suflBcient  senators  and  members  of 
the  House  to  give  the  Republicans  the  control,  Kansas  was 
admitted  in  January,  1861,  with  a  free  state  constitution. 

But  pending  the  struggle  in  Kansas  it  became  apparent  to 
the  South  that  in  practice,  popular  sovereignty  would  give  the 
victory  to  northern  zeal,  wealth,  and  activity.  In  the  cam- 
paign of  1856  the  southern  Democrats  obliged  the  party  to 
declare  that  the  principle  of  state  equality  was  a  supplemen- 
tary part  of  the  doctrine  of  popular  sovereignty.  The  signifi- 
cance of  this  supplemental  doctrine  was  not  very  generally 
perceived  until  the  Dred  Scott  decision  was  pronounced.  The 
Supreme  Court  held  that  under  the  Constitution  the  territory 
west  of  the  Mississippi  was  not  within  the  scope  of  the  power 
of  Congress  "  to  make  all  needful  rules  and  regulations  respect- 
ing the  territory  or  other  property  belonging  to  the  United 
States ; "  that  this  constitutional  provision  only  referred  to 
the  territory  "  belonging  "  to  the  United  States  at  the  time  of 
the  adoption  of  the  Constitution ;  that  the  territory  acquired 
from  France  by  the  Louisiana  purchase  was  acquired  under 
the  treaty-making  power,  and  could  only  be  acquired  for  the 
purpose  of  making  it  into  states,  and  that  the  United  States 
acquired  it  as  trustee  for  the  equal  benefit  of  all  the  states, 
and  therefore  could  impose  no  restrictive  conditions  which 
would  give  to  property  in  slaves  any  less  protection  in  the 
territory  than  to  other  property  ;  and  hence  the  Act  of  1821, 
by  which  slavery  was  excluded  from  that  territory  north  of 
36°  30',  was  unconstitutional  and  void.  The  court  also  held 
the  act  void  because  it  deprived  the  slave-owner  of  his  prop- 


THE  DRED  SCOTT  CASE.  201 

erty  without  making  due  compensation.  The  court  further 
held  that  a  negro  whose  ancestors  were  brought  and  held 
here  as  slaves  could  not,  although  a  free  person  of  color,  be 
a  citizen  of  a  state  within  the  meaning  of  the  Constitution 
respecting  citizens  of  the  United  States ;  that  such  persons  of 
color  did  not  constitute  any  part  of  "the  people,"  as  that 
term  was  used  in  the  Declaration  of  Independence,  or  in  the 
Constitution  ;  that  if  freedom  was  given  by  the  laws  of  a  free 
state  to  a  slave  who  was  brought  by  his  master  from  a  slave 
state  into  the  free  state,  such  laws  had  no  effect  when  the 
slave  returned  or  was  carried  back  to  the  slave  state,  but  the 
laws  of  the  latter  state  controlled,  and  would  revive  and  re- 
store his  former  condition  of  slavery. 

The  South  was  for  a  time  triumphant.  The  anti-slavery 
men  of  the  North  felt  outraged  and  injured.  If  slavery  was 
indeed  guaranteed  by  the  Constitution  in  all  the  territories, 
if  the  free  negro,  as  well  as  the  slave,  under  the  federal  Con- 
stitution "  had  no  rights  which  the  white  man  was  bound  to 
respect,"  the  battle  was  hopelessly  lost.  It  was  plain  that 
there  was  no  standing-room  left  for  the  contest  except  by  a 
popular  revolt   against  such  a  Constitution. 

It  so  happened  that  two  of  the  justices  of  the  Supreme 
Court,  Mr.  Justice  McLean  and  Mr.  Justice  Curtis,  dissented. 
The  latter  delivered  an  opinion  in  which  he  negatived  these 
propositions  of  the  majority.  He  marshalled  in  cogent  and 
luminous  order  the  history  and  legislation  of  the  states  and 
nation,  and  proceeded  to  show  that  as  matters  of  fact  as  well 
as  of  law,  the  free  negro  was  a  citizen  of  five  of  the  states  at 
the  time  of  the  adoption  of  the  Constitution  ;  that  citizenship 
of  the  United  States  only  existed  through  citizenship  of  the 
states,  and  therefore  the  free  negro  could  be  a  citizen  both  of 
the  United  States  and  of  the  states  ;  that  the  condition  of 
slavery  was  contrary  to  natural  right,  and  could  only  exist  by 
positive  law,  and  then  only  in  the  place  where  the  positive  law 
had  force,  and  never  in  any  other  place  or  state ;  that  when  a 
slave  passed  from  the  state  whose  laws  made  him  a  slave  to  a 
state  whose  laws  made  him  free,  he  became,  unless  he  was  a 
fugitive,  free  ;  and  the  condition  of  freedom  once  attaching, 
he  became,  if  born  in  the  United  States,  a  citizen,  and  could 


202  CONSTITUTIONAL  HISTORY. 

not  be  deprived  of  Lis  right  as  a  citizen,  or  of  liis  liberty,  with- 
out due  process  of  law  ;  that  the  constitutional  provision,  giv- 
ing Congress  power  to  "  make  all  needful  rules  and  regulations 
respecting  the  territory  belonging  to  the  United  States,"  was 
framed  with  reference  to  territory  to  be  acquired  as  well  as  to 
that  already  possessed,  since  at  the  time  of  the  adoption  of  the 
Constitution  Georgia  and  North  Carolina  had  not  yet  ceded 
to  the  United  States  their  "  back  country,"  but  were  expected 
to  do  so,  and  soon  after  did ;  that  Congress  had  power  to  ex- 
clude slavery  from  all  territory,  if  it  should  judge  such  exclu- 
sion to  be  a  "  needful  regulation  ; "  and  hence  the  Missouri 
Compromise  exclusion  was  constitutional. 

This  opinion  is  now  supposed  to  be  a  correct  exposition  of 
the  constitutional  questions  involved.  The  Republicans,  will- 
ing to  be  convinced,  accepted  it  then  as  the  truth,  and  de- 
nounced the  decision  of  the  majority  of  the  court  as  a  perver- 
sion of  the  Constitution  and  of  the  law.  They  denounced  the 
court  itself  with  unsparing  bitterness.  Posterity  acquits  the 
court  of  intentional  error.  While  the  judges  could  not  escape 
from  the  influence  of  education,  political  association,  and  pre- 
dilections, they  were  not  conscious  of  the  influence,  or  if  they 
were,  they  firmly  believed  that  the  law  was  as  they  declared 
it.  The  Dred  Scott  decision  occupies  over  two  hundred  pages 
of  the  book  of  reports.  Probably  no  other  case  was  examined 
and  decided  with  a  more  conscientious  sense  of  duty  and  re- 
sponsibility. It  will  remain  in  the  reports  as  a  striking  ex- 
ample of  the  influence  of  erroneous  education  and  preposses- 
sions upon  the  minds  of  the  best  and  ablest  men. 

It  was  not  easy  for  the  Republicans  to  say  that  the  decision 
would  be  defied,  but  it  was  easy  to  say  that  in  due  time  it 
should  be  reversed,  or  the  Constitution  amended.  This  de- 
cision, added  to  the  bitterness  of  the  struggle  over  Kansas, 
weakened  the  adhesion  of  the  northern  wing  of  the  demo- 
cratic party  to  the  ultra  pro-slavery  policy  of  the  South.  The 
Democracy  of  the  North  could  not  be  held  together  upon  a 
slavery-extension  platform.  The  popular  sovereignty  doctrine 
suited  them  better ;  for  they  conceived  that  under  it  slavery 
in  the  territories  could,  as  the  phrase  was,  "  be  voted  up  or 
down,"  and  whether  one  way  or  the  other,  the  party  was  not 
responsible  for  the  result. 

) 


THE  WAR   OF  THE  REBELLION.  203 

The  democratic  convention  in  1860  divided  upon  the  ques- 
tion whether  the  Constitution  itself  extended  slavery  into  the 
territories,  or  simply  permitted  it  to  be  extended.  Two  con- 
ventions were  held.  Mr.  Breckinridge  was  nominated  by  the 
southern,  Mr.  Douglas  by  the  northern.  Mr.  Lincoln,  the 
republican  candidate,  had  an  easy  victory  over  the  divided 
opposition. 

The  crisis  of  the  long  struggle  culminated  upon  the  election 
of  Mr.  Lincoln.  Slavery  was  left  with  only  the  southern 
wing  of  the  Democracy  for  its  champions  and  defenders. 
South  Carolina  was  the  first  state  to  pass  her  ordinance  of  se- 
cession. Florida,  Mississippi,  Louisiana,  Texas,  Georgia,  and 
Alabama  followed.  Mr.  Buchanan  yet  remained  President, 
and  many  measures  were  suggested  to  avert  the  dissolution  of 
the  Union.  Congress  recommended  an  amendment  to  the 
Constitution  which  forbade  Congress  ever  to  interfere  with 
slavery  in  the  states.  For  a  time  it  seemed  possible  that 
slavery  might  be  lifted  to  a  stability  and  power  beyond  what 
it  had  ever  attained.  President  Buchanan  deplored  secession 
as  a  calamity,  but  intimated  his  doubts  whether  Congress  had 
any  power  of  coercion  to  avert  it. 

President  Lincoln,  in  his  inaugural  address,  said,  *'  I  have  no 
purpose  directly  or  indirectly  to  interfere  with  slavery  where 
it  exists.  I  believe  I  have  no  lawful  right  to  do  so,  and  I 
have  no  inclination  to.  do  so." 

But  the  seceding  states  did  not  wish  to  return.  They  has- 
tened to  assemble,  and  they  formed  their  own  federal  govern- 
ment, which  they  styled  "  The  Confederate  States  of  America." 
They  recognized  slavery,  and  practically  adopted  the  same 
sort  of  government  which  they  had  all  along  claimed  the 
United  States  rightfully  was,  and  would  have  been,  had  its 
Constitution  been  strictly  construed,  and  implied  and  construc- 
tive powers  rejected. 

Shortly  after  the  accession  of  Mr.  Lincoln  hostilities  began. 
Thereupon  Virginia,  North  Carolina,  Tennessee,  and  Arkansas 
joined  the  southern  confederacy,  making  eleven  states  in  all. 
Delaware,  Maryland,  Kentucky,  and  Missouri,  with  feeble 
majorities  and  faltering  fidelity,  remained  in  the  Union. 

The  United  States,  or  what  remained  of  it,  resolved  to  sub- 


204  CONSTITUTIONAL  HISTORY. 

due  the  rebellion.  The  right  to  do  this  has  been  much  de- 
bated. In  any  argument  of  the  question,  the  conclusion  to  be 
reached  depends  upon  the  premises  stated.  That  every  na- 
tional government  has  the  right  to  employ  all  its  might  to  pre- 
vent its  own  destruction  would  seem  to  be  demonstrated  by 
the  universal  assertion  of  that  right.  It  obeys  the  law  of  self- 
preservation.  It  is  a  useless  disputation  which  denies  the 
right.  It  will  be  asserted  while  the  strength  remains  to  vin- 
dicate it.  Even  Mr.  Buchanan  receded  from  his  feeble  posi- 
tion of  the  want  of  constitutional  power  to  coerce  obedience 
and  submission.  The  sword  is  the  final  argument ;  if  you  do 
not  concede  its  force  you  may  lose  your  life.  The  United 
States  resorted  to  arms  to  preserve  its  existence  and  integrity 
and  to  demonstrate  its  right  to  both.  It  declared  its  purpose 
was  to  preserve  and  restore  the  Union.  It  disclaimed  any  in- 
tention to  interfere  with  slavery  in  the  states  where  it  consti- 
tutionally existed. 

The  North,  especially,  determined  that  the  Union  should 
be  preserved  at  all  hazards.  The  power  of  the  people  was 
then  shown.  The  government  would  have  been  helpless  if 
the  people  had  not  risen  to  support  it.  If  the  people  had 
been  inactive,  or  unwilling  to  respond  to  the  calls  of  the  Presi- 
dent and  of  Congress,  the  national  government  would  have 
been  paralyzed  and  powerless.  To  subdue  the  rebellion  was 
altogether  too  stupendous  an  undertaking  for  the  ordinary 
compulsory  machinery  of  the  government.  But  the  people 
stood  behind  it  and  went  before  it.  With  a  loyalty  and 
patriotism  which  only  great  crises  can  evoke,  they  welcomed 
as  a  duty  the  sacrifice  and  cost  of  the  struggle.  The  people 
were  greater  than  the  Constitution,  the  laws,  and  the  govern- 
ment combined ;  they  rose  to  preserve  and  defend  them,  to 
the  end  that  when  the  Union  and  peace  should  be  restored, 
the  Constitution,  the  laws,  and  the  government  might  sur- 
vive to  regulate  and  govern  the  whole  people  of  an  undivided 
country. 

But  the  rebellion  was  not  to  be  subdued  easily.  The  status 
of  the  slaves  became  important.  General  Fremont  early  pro- 
posed to  free  them  in  Missouri,  but  the  President  overruled 
him.     The  slave  was  disposed  to  regard  the  Union  soldier  as 


EMANCIPATION  PROCLAMATION.  206 

his  friend.  The  war  began  with  a  disclaimer  of  intent  to  free 
the  slave,  but  as  it  went  on,  public  sentiment  began  to  demand 
a  reversal  of  this  declaration  of  purpose,  and  less  tenderness 
in  preserving  his  master's  title  to  him.  General  Butler  greatly 
gratified  this  sentiment  by  declaring  the  slave  "  contraband 
of  war."  This  was  grim  humor,  and  the  people  enjoyed  the 
joke  and  applauded  its  result. 

In  September,  1862,  the  President  gave  notice  that  he 
would  emancipate  the  slaves  if  the  seceding  states  did  not 
return  to  their  allegiance  by  the  first  of  January,  1863.  He 
had  little  reason  to  expect  their  return,  and  he  gave  this 
notice  in  order  to  make  the  way  a  little  easier  for  the  procla- 
mation of  emancipation,  and  to  prepare  the  public  to  expect 
and  to  accept  it.  The  first  of  January,  1863,  arrived,  and  the 
proclamation  was  issued.  The  North  recognized  its  necessity 
and  applauded  its  justice.  Hundreds  of  thousands  welcomed 
it  as  the  declaration  of  the  true  object  for  which  the  war 
should  be  waged.  Thus  the  hopes  of  the  most  radical  were 
realized.  The  war  wrought  a  great  revolution  in  northern 
sentiment.  The  name  "  Abolitionist "  ceased  to  be  a  term  of 
reproach.  After  the  Emancipation  Proclamation,  vast  multi- 
tudes of  Republicans  and  Democrats  became  Abolitionists  in 
sentiment,  and  would  have  regarded  the  war  a  failure  if  peace 
had  been  declared  with  slavery  reinstated.  Slavery  was  hate- 
ful in  itself ;  it  was  the  cause  of  the  war ;  it  deserved  to  perish  ; 
now  was  a  good  time  to  end  it ;  if  permitted  to  survive,  it 
might  lead  to  war  again.  There  were  many  who  regarded  this 
proclamation  as  a  violation  of  the  Constitution,  but  the  loyal 
answer  was  that  while  the  war  lasted,  it  was  disloyalty  to 
stickle  over  the  Constitution,  since  unless  the  war  could  be  vic- 
toriously ended,  the  Constitution  itself  would  be  of  no  value. 

But  the  true  answer  is,  that  as  commander-in-chief  of  the 
army  and  navy  the  President  has  the  constitutional  power  to 
employ  the  means  recognized  by  the  laws  of  war  as  necessary 
to  conquer  the  enemy.  Congress  can  pass  no  law  which  can 
deprive  the  President  of  the  powers  which  the  Constitution 
confers,  in  creating  him  commander-in-chief. 

Congress  repealed  the  Fugitive  Slave  Law  in  1864.  When 
the  war  was  nearly  ended  doubts  arose  as  to  the  scope  of  the 
Emancipation  Proclamation.     It  was   urged  that  as  a  war 


(( 


TTK  'TV 


206  CONSTITUTIONAL  HISTORY. 

measure  it  Lad  no  effect  except  in  the  case  of  those  com- 
batants who  were  aiding  the  rebellion ;  since  the  prosecution 
of  the  war  presented  no  necessit}'^  to  use  war  measures  against 
non-combatants,  and  the  rules  of  war  do  not  justify  resort  to 
any  measures  not  apparently  necessary  or  conducive  to  suc- 
cess. This  construction  would  limit  the  scope  of  the  emanci- 
pation, and  leave  great  numbers  in  slavery.  To  make  the 
emancipation  complete,  the  Thirteenth  Amendment  was  pro- 
posed by  Congress  and  ratified  by  the  requisite  number  of 
states.  Slavery  was  constitutionally  ended.  The  Dred  Scott 
decision  was  superseded.  The  nation  was  led  through  war 
and  blood  that  slavery  might  be  abolished.  Daniel  Webster 
said :  "  There  is  not  a  monarch  on  earth  whose  throne  is  not 
liable  to  be  shaken  by  the  progress  of  opinion,  and  the  senti- 
ment of  the  just  and  intelligent  part  of  the  people."  The 
progress  of  opinion  shook  the  republic  almost  to  its  fall,  in 
order  to  reestablish  it  upon  the  foundation  of  the  Declaration 
of  Independence. 

A  word  with  respect  to  President  Lincoln.  Every  one  now 
knows  that  he  had  a  rare  combination  of  goodness  and  great- 
ness, of  common  sense  and  of  uncommon  sagacity.  Our 
people  scarcely  knew  him  when  he  became  President,  and 
they  had  a  painful  distrust  of  his  fitness  for  his  high  place  in 
the  alarming  emergency  which  ensued.  But  he  soon  began 
to  disclose  the  great  qualities  which  his  modest  career  had 
hitherto  concealed.  Patient,  cheerful,  thoughtful,  and  delib- 
erative, we  knew  him  to  be ;  but  the  war  was  to  prove  how 
energetic,  capable,  hopeful,  courageous,  firm,  and  just  he  was. 
He  safely  led  our  people  through  the  great  crisis  and  danger. 
He  had  courage  amid  peril,  confidence  among  the  doubting, 
firmness  against  opposition.  His  energy  evoked  and  directed 
the  mightiest  resources  ;  his  moderation  restrained  the  im- 
petuous ;  his  wisdom  governed  in  the  council  and  inspired  in 
the  field.  His  hope  was  a  strength.  His  manner  was  mild 
and  cheerful,  and  unchangeable  by  censure  or  injustice.  He 
tempered  the  severities  of  war  by  his  benevolence  and  fair- 
ness, and  at  last  compelled  the  conquered  enemies  to  expect 
more  from  his  sense  of  justice  than  from  any  other  resource. 
He  was  murdered  as  he  sat  in  a  chair ;  the  nation  now  ranks 
him  among  her  greatest  men. 


LECTURE  IX. 

THE  EECONSTRUCTION  PERIOD. 

The  Negro  as  a  Citizen  and  Voter.  —  International  Arbitra- 
tion.—  Interstate  Commerce.  —  Era  of  Great  Enterprises. 
—  Tariff.  —  Taxation. 

General  Lee  surrendered  to  General  Grant  in  April, 
186b.  The  immediate  question  then  was :  What  are  the 
relations  between  the  United  States  and  the  seceded  states  ? 
That  the  latter  should  be  restored  as  states  of  the  Union  was 
believed  to  be  the  object  ultimately  to  be  attained ;  but  how 
to  adjust  the  terms  and  conditions  of  their  return,  and  what 
these  should  be,  was  a  problem  of  the  greatest  difficulty. 
President  Lincoln  notified  the  generals  of  our  armies  that  he 
reserved  these  questions  to  himself.  In  his  last  public  ad- 
dress, made  only  four  days  before  his  death,  he  said :  "  It 
may  be  my  duty  to  make  some  announcement  to  the  people  of 
the  South.  I  am  considering  and  shall  not  fail  to  act  when 
satisfied  that  action  will  be  proper ; "  but  he  was  assassinated 
within  a  week  after  Lee's  surrender,  and  Andrew  Johnson 
became  President. 

President  Johnson  was  another  remarkable  product  of 
American  Democracy.  Learning  to  read  after  he  had  nearly 
attained  his  majority,  he  supplied  in  some  sort  by  his  maturer 
diligence  the  lack  of  early  advantages.  By  dint  of  native 
force  he  rose  from  poverty  and  obscurity  to  the  foremost  po- 
sitions in  his  state  and  in  the  nation.  He  fought  his  way 
upwards,  and  his  disposition  and  temper  led  him  to  hate  the 
men  and  systems  which  opposed  his  rise.  He  hated  slavery 
because  the  system  accorded  no  place  nor  respect  for  the  toil- 
ing white  man.  He  hated  treason  because  he  knew  so  many 
whom  he  regarded  as  traitors  who  had  been  his  personal  ene- 
mies.    He  loved  liberty  and  his  country  because  but  for  them 


208  CONSTITUTIONAL  HISTORY. 

he  had  never  risen  from  his  low  estate.  He  was  honest, 
aggressive,  and  passionate,  and  took  counsel  largely  of  his 
feelings.  Had  he  been  a  Frenchman  of  the  era  of  the  Rev- 
olution he  probably  would  have  been  a  Jacobin,  foremost  to 
strike  for  liberty,  and  foremost  to  be  struck  by  its  ven- 
geance. Booth's  pistol  lifted  him  suddenly  to  the  supreme 
place  in  the  nation.  The  crisis  in  his  country's  destiny  was 
momentous  ;  his  own  power  and  influence  commanding.  The 
fate  of  the  South  seemed  committed  to  his  hands. 

The  reconstruction  problem  was  not  in  the  minds  of  the 
framers  of  the  Constitution.  Ample  power  was  given  by  the 
provision  that  "  The  United  States  shall  guarantee  to  every 
state  a  republican  form  of  government ; "  but  how  and  by 
whom  that  power  should  be  wielded  was  not  defined.  It  is 
true  that  the  Constitution  gave  to  Congress  the  power  "  to 
make  all  laws  which  shall  be  necessary  and  proper  to  carry 
into  effect  the  powers  vested  by  the  Constitution  in  the  gov- 
ernment of  the  United  States,"  but  the  laws  remained  to  be 
passed,  and  Congress  was  not  now  in  session.  The  Constitu- 
tion was  obviously  made  for  states  in  the  Union,  and  not  for 
seceding  states  compelled  to  return  —  theoretically  in  but 
practically  out.  The  problem  was,  as  Mr.  Lincoln  had  ex- 
pressed it,  how  to  restore  these  states  to  their  practical  rela- 
tions to  the  Union.  Who  should  take  charge  of  the  business, 
the  President  or  Congress  ?  The  war  was  over,  but  care  was 
necessary  lest  the  objects  of  the  war  should  be  lost.  These 
objects  had  changed  as  the  contest  advanced. 

In  1861  Congress  by  a  joint  resolution  declared  the  objects 
to  be,  "  to  defend  and  maintain  the  supremacy  of  the  Consti- 
tution, and  all  the  laws  passed  in  pursuance  thereof,  and  to 
preserve  the  Union  with  all  the  dignity,  equality,  and  rights 
of  the  several  states  unimpaired;  that  as  soon  as  these  ob- 
jects are  accomplished  the  war  ought  to  cease."  But  in  1865 
slavery  had  been  overthrown,  and  the  national  demand,  after 
peace  had  been  coerced,  was  very  different  from  its  demand 
when  peace  was  first  disturbed. 

It  was  now  April,  and  Congress  would  not  meet  until  De- 
cember. President  Johnson  resolved  to  attempt  the  solution 
of  the  difficulties  which  confronted   him  without   aid  from 


i 


LINCOLN'S  PLAN  OF  KECONSTRUCTION.  209 

Congress.  In  this  he  seemed  to  be  justified  by  the  action 
and  declarations  of  President  Lincoln.  Mr.  Lincoln  had 
plainly  indicated  in  dealing  with  the  State  of  Louisiana,  before 
his  reelection,  a  purpose  to  take  charge  of  the  reconstruction 
of  the  seceding  states.  With  the  triumph  of  our  arms  we 
had  obtained  possession  of  the  Mississippi  River,  and  military 
control  of  the  State  of  Louisiana.  Mr.  Lincoln  was  anxious 
to  establish  civil  government  in  that  state  upon  the  suffrages 
of  those  who  would  resume  their  loyalty  to  the  Union. 
Under  the  direction  of  the  military  governor  two  members 
of  Congress  were  chosen,  and  in  1863  they  were  admitted  to 
their  seats.  Mr.  Lincoln  conceived  that  under  the  constitu- 
tional obligation  to  guarantee  to  every  state  a  republican  form 
of  government,  it  would  be  practicable  to  form  such  a  govern- 
ment in  Louisiana  and  uphold  it  by  military  power.  His  idea 
was  to  start  with  not  less  than  one  tenth  of  the  electors.  These 
should,  upon  taking  tlie  proper  oath  of  loyalty  and  obedience, 
receive  restoration  to  their  civil  rights  and  property,  except 
as  to  slaves,  and  be  permitted  to  establish  the  civil  govern- 
ment. In  1864  steps  were  taken  in  that  state  to  carry  out 
the  President's  plan.  State  oflBcers  were  chosen  and  an  anti- 
slavery  constitution  adopted.  A  little  more  than  one  tenth 
of  the  electors  participated  in  the  elections.  The  State  of  Ar- 
kansas the  same  year  took  similar  action.  Of  course  neither 
of  these  governments  could  sustain  itself  without  the  military 
support  of  the  nation.  Nevertheless,  Mr.  Lincoln's  idea  was, 
as  he  expressed  it,  that  "they  constituted  the  eggs  from 
which  a  government  could  be  hatched,  and  grow  to  be  full 
fledged."  Congress  dissented  sharply.  It  refused  to  admit 
the  representatives  sent  by  Arkansas,  alleging  that  the  rebel- 
lion was  not  yet  suppressed  there,  but  only  held  in  check. 
It  passed  a  bill  for  the  establishment  of  governments  in  the 
rebellious  states.  This  bill  authorized  the  President  to  ap- 
point a  provisional  governor  for  every  one  of  these  states. 
When  armed  resistance  to  the  United  States  should  cease  in 
any  state  the  governor  should  enroll  the  electors,  and  appoint 
an  election  for  delegates  to  a  constitutional  convention ;  this 
convention  should  frame  a  constitution  conforming  to  the  Con- 
stitution of  the  United  States,  abolishing  slavery,  disfranchising 
u 


210  CONSTITUTIONAL  HISTORY. 

certain  confederate  officers,  and  repudiating  the  rebel  debt. 
If  adopted  by  the  voters,  it  should  be  certified  to  the  Presi- 
dent, and  if  approved  by  Congress,  the  state  government 
should  be  considered  as  properly  reconstructed.  Congress 
thus  plainly  asserted  its  objections  to  the  President's  plan  of 
reconstruction,  and  its  determination  to  control  the  matter  it- 
self. Mr.  Lincoln  was  a  candidate  for  reelection,  but  he 
refused  to  approve  the  bill.  He  said  he  was  unwilling  to 
commit  the  government  to  an  inflexible  plan ;  that  the  plan 
proposed  by  Congress  was  proper  for  states  choosing  to  adopt 
it,  and  he  would  try  and  carry  out  the  plan  by  means  of  mil- 
itary governors.  An  attempt  was  now  made  to  defeat  Mr. 
Lincoln's  reelection  by  charging  him  with  an  assumption 
of  unwarrantable  executive  power,  and  a  usurpation  of  the 
functions  of  Congress.  But  his  reelection  demonstrated  that 
he  had  the  confidence  of  the  people.  Beyond  doubt  he  in- 
tended to  manage  the  reconstruction  of  the  state  governments 
without  any  direction  from  Congress.  He  meant  to  move 
carefully,  securing  the  assistance  of  all  loyal  white  men,  striv- 
ing constantly  to  increase  their  number,  bringing  to  their  aid 
the  best  portion  of  the  blacks,  guarding  all  by  military  power 
if  it  should  be  necessary,  and  moving,  as  he  expressed  it,  from 
point  to  point  as  far  ahead  as  he  could  clearly  see,  and  chang- 
ing his  course  when  he  discovered  that  it  was  necessary,  or 
that  he  had  made  a  mistake.  What  his  plans  would  have 
developed  into  he  did  not  know,  but  he  was  confident  that 
they  could  be  moulded  to  meet  the  emergencies  of  the  situa- 
tion and  finally  restore  all  the  states  to  the  Union. 

President  Johnson,  unfortunately  for  himself,  did  not  in- 
herit the  commanding  influence  of  Mr.  Lincoln,  nor  the  quali- 
ties which  inspired  it.  His  first  public  utterances  after  his 
accession  to  the  presidency  were  in  fierce  denunciation  of  the 
rebellion  as  treason,  and  of  its  principal  leaders  as  traitors, 
richly  deserving  the  punishment  appointed  for  that  crime. 

The  southern  leaders  who  had  buffeted  and  denounced  him 
as  a  pestilent  renegade  were  appalled  by  the  violence  of  his 
denunciations,  and  by  the  vengeance  he  seemed  ready  to 
wreak  upon  them.  They  soon  became  suppliants  for  his 
favor,  and  used  their  best  efforts  to  conciliate  him.     He  sur- 


JOHNSON'S  PLAN  OF  RECONSTRUCTION.     211 

prised  both  bis  friends  and  enemies  by  a  sudden  change  in  his 
tone  and  temper.  He  became  forbearing,  forgiving,  magnani- 
mous. His  revised  intention  was  to  allow  the  seceding  states 
to  resume  their  self-government,  and  their  places  in  Congress, 
without  exacting  from  them  any  guarantees,  beyond  their  for- 
bidding slavery  and  repudiating  the  debts  incurred  in  aid  of 
their  rebellion. 

On  the  29th  day  of  May,  1865,  he  issued  an  amnesty  procla- 
mation, pardoning  the  greater  part  of  those  who  had  partici- 
pated in  the  rebellion,  and  restoring  their  property  except  as 
to  slaves,  upon  the  simple  condition  that  they  should  sub- 
scribe and  take  an  oath  to  support  and  defend  the  Constitu- 
tion and  the  Union  of  the  states  under  the  Constitution,  and 
obey  all  laws  and  proclamations  in  regard  to  the  emancipation 
of  slaves.  Various  classes  of  the  most  influential  and  obnox- 
ious participants  in  the  rebellion  were  excluded  from  this 
pardon  ;  but  these  were  advised  that  their  individual  applica- 
tions would  be  favorably  considered.  He  declared  that  th 
rebellion  in  its  revolutionary  progress  had  deprived  the  people 
of  all  civil  government.  He  appointed  a  provisional  governor 
of  the  State  of  North  Carolina,  and  soon  after  of  seven  other 
states.  He  enjoined  these  governors  to  make  provision  for 
the  election  of  loyal  delegates,  and  for  their  meeting  and  fram- 
ing a  new  state  constitution.  Thereupon  and  in  accordance 
with  such  new  constitution,  the  legislature  should  meet  and 
frame  the  proper  laws.  Those  persons  who  had  the  qualifica- 
tions of  voters  under  the  laws  existing  at  the  date  of  the  state 
ordinance  of  secession,  and  who  should  take  the  oath  above 
prescribed,  were  to  be  entitled  to  vote  for  delegates  to  the 
constitutional  convention ;  this  convention  and  the  legislature 
should  prescribe  the  qualifications  of  electors  and  the  eligi- 
bility of  persons  to  hold  oflfice.  This  proclamation  recited 
that  this  "  power,  the  people  of  the  several  states  composing 
the  Federal  Union  have  rightfully  exercised  from  the  origin 
of  the  government  to  the  present  time." 

These  provisional  governors  were  thus  practically  made  the 
supervisors  of  the  reconstruction  of  the  state  governments, 
and  under  this  system  the  way  seemed  short  and  easy  for  the 
states  to  resume  their  former  places  in  the  Union.     But  it 


212  CONSTITUTIONAL  HISTORY. 

was  seen  that  the  negro  had  no  privilege  of  voting  in  the  first 
instance,  and  it  was  not  to  be  expected  that  the  right  would 
be  accorded  him  under  the  new  state  constitutions ;  no 
guarantee  that  justice  should  be  done  him  was  exacted.  These 
new  constitutions  were  formed,  the  legislatures  met,  laws  were 
made,  senators  and  representatives  to  Congress  were  chosen ; 
but  the  negro  was  not  only  not  admitted  to  any  participation 
in  the  government,  but  the  new  legislatures  shocked  the 
northern  sense  of  justice  by  the  cruel  and  revengeful  laws 
which  they  enacted.  The  barbarity  of  the  most  odious  slave 
code  was  under  various  disguises  applied  to  the  negro  in  his 
new  condition  of  freedom. 

Poverty  was  declared  evidence  of  vagrancy.  Negroes  who 
were  orphans  or  unprotected  were  condemned  to  an  appren- 
ticeship until  they  became  of  age  —  twenty-one  years  for 
males,  eighteen  for  females.  Their  masters  were  given  au- 
thority to  punish  them  for  offences,  of  which  the  master  was 
appointed  the  judge ;  if  the  apprentice  fled  from  this  bondage, 
the  master  could  pursue  and  capture  the  fugitive.  The  law 
against  vagrancy  was  so  framed  as  to  embrace  the  great  mass 
of  the  colored  population.  Inexperienced  in  their  new  free- 
dom, a  condition  of  vagrancy  might  well  be  expected  to  pre- 
cede their  acceptance  of  the  more  stable  settlement  and  pur- 
suits which  the  demand  for  their  labor  would  afford,  and 
necessity  ultimately  enjoin.  The  vagrant  blacks  were  made 
liable  to  arrest  and  fine,  and  if  unable  to  pay  the  fine  they 
were  to  be  hired  out  to  the  bidder  who  would  pay  the  fine  for 
the  shortest  term  of  service.  If  a  negro  should  make  a  con- 
tract to  perform  service  and  should  violate  it  and  leave  the 
service,  his  employer  was  authorized  to  arrest  him  and  com- 
pel his  performance  of  the  service,  and  the  expenses  of  his 
arrest  might  be  charged  against  his  wages. 

It  is  proper  to  say  that  the  same  laws  were  not  enacted  in 
all  the  seceded  states,  but  their  purpose  and  effect  were  the 
same  in  a  majority  of  them.  The  fact  that  such  laws  were 
enacted  anywhere  exasperated  the  North  to  an  extreme  de- 
gree. 

The  reconstruction  scheme  of  President  Johnson  was  doomed 
to  failure  from  the  start.     He  was  unfortunate  in  his  assump- 


FAILURE   OF  THE  PRESIDENT'S  PLAN.  213 

tion  of  great  and  questionable  powers  without  any  legislation 
to  give  the  powers  proper  regulation  and  effect.  He  was  un- 
fortunate in  his  sudden  change  of  sentiment  towards  the  se- 
ceded states  and  their  leaders.  Doubtless  he  meant  all  for 
the  best.  He  was  unfortunate  in  the  abuse  made  of  his  clem- 
ency. He  conceived  that  it  would  be  happy  for  his  fame  if  he 
could  bind  up  the  wounds  of  his  bleeding  country,  and  wel- 
come back  into  the  Union  the  once  erring  but  now  submissive 
states.  He  mistook  the  temper  of  both  the  North  and  South. 
He  had  little  facility  to  perceive  his  mistakes,  and  less  to  cor-  j 
rect  them.  His  obstinacy  and  passion  increased  the  more  he 
was  opposed.  He  clung  to  the  impracticable  until  he  was 
crushed  ;  and  his  defeat  and  humiliation  were  signal  and  irre- 
mediable. 

There  has  been  much  speculation  concerning  the  course  Mr. 
Lincoln  would  have  pursued  and  the  issue  of  it.  But  cases 
which  exist  only  in  the  imagination  are  generally  settled  ac- 
cording to  the  wishes  of  the  dreamer. 

It  would  seem  that  a  fatal  delusion  seizes  the  Vice-President, 
when  by  casualty  he  becomes  President.  He  seems  to  feel 
that  the  office  bestowed  by  misfortune  or  crime  should  be  re- 
newed by  the  people.  But  this  the  people  have  never  done.  \  ,^ 
Probably  they  never  will.  The  people  link  the  calamity 
which  elevates  to  the  elevation  itself,  and  refuse  to  renew  the 
one,  lest  they  seem  to  condone  or  approve  the  other. 

Congress  met  in  December,  1865,  alarmed  and  indignant. 
It  was  plain  that  the  seceded  states,  encouraged  by  President 
Johnson's  construction  of  the  Constitution  and  of  his  powers 
under  it,  and  by  the  scheme  of  reconstruction  which  he  had 
set  on  foot,  felt  they  had  full  room  to  give  force  to  their  re- 
sentment, and  to  avenge  upon  the  negro  the  humiliation  and 
defeat  they  had  sustained  in  their  appeal  to  arms.  That  they 
should  regard  the  negro  as  unfit  for  freedom,  and  the  indirect 
cause  of  their  calamities,  was  entirely  natural.  It  is  probably 
too  much  to  expect  that  human  nature  should  graciously  ac- 
cept the  unwelcome  conditions  imposed  by  the  force  of  a  con- 
quering enemy.  ^ 

The  people  of  the  seceded  states  believed  their  cause  to  be 
just.     They  placed  their  all  at  hazard  in  its  support  and  de- 


1. 
214  CONSTITUTIONAL  HISTORY. 

fence ;  and  they  lost.  Their  slaves  might  become  their  mas- 
ters, or  their  own  avengers,  unless  every  obstacle  was  inter- 
/  posed.  Revenge,  a  sense  of  danger,  and  bitterness  of  spirit 
(^  inspired  them,  and  made  them  unjust.  But  Congress  rightly 
determined  that  while  the  nation  was  sitting  in  judgment  upon 
the  subdued  insurgents  and  exacting  security  for  the  future, 
if  not  indemnity  for  the  past,  the  offenders,  who  were  brought 
before  the  bar  of  the  nation,  should  not  take  seats  upon  the 
bench  of  judges.  The  difference  between  states  subdued  by 
conciliation  and  states  subdued  by  force  of  arms  would  seem 
to  justify  difference  in  treatment. 

Congress  was  at  first  distracted  by  the  variety  of  plans  for 
reconstruction  which  were  proposed,  but  it  ultimately  took 
charge  of  the  business  with  a  strong  hand.  It  resolved  to  re- 
pudiate the  President's  plan,  and  frame  one  of  its  own.  To 
do  this  it  was  necessary  to  pass  laws  over  the  veto  of  the 
President.  The  event  showed  that  it  had  the  two  thirds  nec- 
essary for  this  purpose.  Congress  adopted  a  plan  of  recon- 
struction, upon  the  theory  that  the  war  continued  until  the 
states  should,  by  abolishing  slavery,  adopting  universal  suf- 
frage, and  conforming  their  governments  to  the  new  order  of 
things,  give  reasonable  assurance  that  there  should  be  no 
governmental  discrimination  against  the  black  man,  no  danger 
of  his  losing  his  equality  of  right ;  and  that  the  new  Union 
should  be  guaranteed  by  the  votes  of  the  emancipated  slaves. 

The  details  would  be  long  to  narrate,  but  the  results  may 
be  briefly  stated.  Congress  declared  that  it  was  the  deposi- 
tary of  the  power  to  devise  the  proper  plan  of  reconstruction  ; 
/  it  refused  to  recognize  the  governments  established  in  the  se- 
I  ceded  states  under  their  new  constitutions ;  it  would  not  ad- 
mit their  senators  and  representatives ;  it  repudiated  and  de- 
nounced their  laws  respecting  the  negroes.  It  first  passed  a 
Civil  Rights  Bill  by  which  it  conferred  citizenship  and  equality 
of  rights  upon  the  negro.  It  then  proposed  the  Fourteenth 
Amendment,  and  offered  to  receive  any  state  into  the  Union 
upon  its  ratification  of  this  amendment.  Tennessee  alone 
ratified  and  was  admitted.  The  other  ten  states  refused  to 
ratify.  Relying  upon  the  plan  and  advice  of  the  President, 
some  of  these  states  rejected  the  amendment  unanimously ; 


THE  CIVIL  RIGHTS  ACT.  215 

others  rejected  it  with  substantial  unanimity.  Congress  then 
superseded  the  state  governments  and  established  military 
governments  over  the  states.  It  provided  that  the  people  of 
these  states  might  relieve  themselves  from  the  military  gov- 
ernments upon  the  ratification  of  the  Fourteenth  Amendment, 
and  upon  their  adopting  such  constitutions  and  governments 
as  Congress  should  approve  ;  the  essential  requisites  of  which 
should  be  equality  of  rights  and  of  suffrage  to  the  black  man. 
The  elections  at  the  North  gave  to  Congress  such  a  prepon- 
derance of  power  over  the  President  that  the  seceded  states 
finally  acceded  to  the  plan  proposed  by  Congress,  and  were 
ultimately  restored  to  their  self-government  and  places  in  the 
Union. 

The  struggle  between  the  President  and  Congress  was 
long  and  bitter,  and  finally  culminated  in  an  ill-advised  and 
unjust  attempt  to  remove  him  by  impeachment ;  an  attempt 
which  failed  by  only  a  single  vote. 

It  was  not  at  first  the  intention  of  Congress  to  confer  suf- 
frage upon  the  emancipated  slaves.  But  the  struggle  in 
which  it  engaged  with  the  President,  and  the  cruel  laws 
which  the  Southern  States  enacted  with  respect  to  the  negro, 
created  a  revolution  in  the  public  mind  at  the  North,  and  led 
to  universal  suffrage  and  citizenship,  North  as  well  as  South. 

This  is  the  great  constitutional  result  of  the  reconstruction 
period.  Its  other  phases  were  means  to  this  end,  or  its  re- 
sults. Grave  doubts  existed  with  respect  to  the  constitution- 
ality of  the  Civil  Rights  Act.  According  to  the  Dred  Scott 
decision,  the  free  negro,  although  the  state  of  his  birth  and 
residence  might  confer  upon  him  all  the  rights  of  state  citi- 
zenship, was  incapable  of  becoming  a  citizen  of  the  United 
States.  According  to  the  dissenting  opinion  of  Mr.  Justice 
Curtis,  citizenship  of  the  United  States  only  existed  through 
citizenship  of  a  state.  If,  therefore,  in  the  one  case,  the 
United  States  never  had  the  power  to  make  the  colored  man 
a  citizen,  and  if,  in  the  other,  only  the  state  could  make  him  a 
citizen.  Congress  exceeded  its  powers  in  attempting  to  confer 
citizenship  upon  him.  The  difficulty,  however,  was  met  by 
the  Fourteenth  Amendment.  This  was  proposed  to  the  states 
for  ratification  in  June,  1866.  Its  ratification  was  proclaimed 
July  20, 1868. 


216  CONSTITUTIONAL  HISTORY. 

Its  first  clause  provided  :  "  All  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  state  wherein 
they  reside."  Thus  birth  in  the  United  States  and  subjection 
to  its  jurisdiction  constitute  one  a  citizen  of  the  United  States  ; 
while  the  addition  of  residence  in  a  state  makes  a  citizen  of 
the  United  States  a  citizen  of  the  state.  The  Supreme  Court 
has  since  held  that  an  Indian  born  in  the  United  States,  but 
member  of  a  tribe,  is  not  a  citizen,  for  the  reason  that  he  was 
not  born  subject  to  the  jurisdiction  of  the  United  States,  but 
of  his  tribe.^  Mr.  Justice  Miller,  speaking  for  the  court,^  said 
that  the  phrase  "  subject  to  the  jurisdiction  thereof  "  was  in- 
tended to  exclude  from  citizenship  "children  of  ministers, 
consuls,  and  citizens,  or  subjects  of  foreign  states,  born  in  the 
United  States."  It  is  difficult  to  see  how  the  children,  born 
here  of  parents  of  any  nationality  other  than  that  of  the  In- 
dian tribes  within  the  United  States,  can  be  excluded  from 
citizenship.  The  foreigner  who  comes  here  in  the  official 
employment  of  his  home  government  is  by  comity  regarded 
as  subject  to  the  jurisdiction  of  that  government,  but  the  un- 
official foreigner  is,  while  here,  subject  to  the  jurisdiction  of 
our  government.  The  children  of  the  latter  born  here  seem 
to  come  within  the  exact  terms  of  the  Constitution.  Treaty 
regulations  with  his  home  government  may  provide  that  his 
children  shall  not  become  citizens;  but  the  Constitution  is 
paramount,  and  the  right  it  confers  upon  the  child  born 
here  is  manifestly  above  invasion  or  diminution  by  any  treaty. 
We  reserve  for  a  subsequent  lecture  the  consideration  of  vari- 
ous questions  involved  in  the  Fourteenth  Amendment.  Its 
immediate  effect  and  purpose  were  to  place  the  negro  within 
the  national  protection,  and  confer  upon  him  every  right  and 
privilege  of  a  national  citizen.  It  did  not  confer  the  right 
of  suffrage  upon  him,  but  in  connection  with  the  Fifteenth 
Amendment  it  led  to  and  procured  the  right.  The  ratification 
of  the  last  amendment  was  proclaimed  March  30,  1870. 

The  immediate  effects  of  conferring  the  right  of  suffrage 
upon  the  freedmen  were  bad  enough.     Unscrupulous  north- 

1  Elk  V.  Wilkins,  112  U.  S.  94. 

2  Slaughter-House  cases,  16  Wallace,  36. 


CARPET-BAG  GOVERNMENT.  217 

ern  adventurers  flocked  to  the  reconstructed  states  in  the 
hope  of  political  and  other  advantage.  Their  meagre  estate 
and  their  transient  sojourn  caused  them  to  be  defined  as  "car- 
pet-baggers." The  negro,  naturally  regarding  the  northern 
Republican  as  his  friend,  too  readily  became  his  tool  and 
accomplice  in  schemes  of  official  corruption  and  plunder. 
The  carpet-bagger  was  installed  in  the  executive  office,  and 
the  negro  in  the  legislatures.  Under  their  new  state  constitu- 
tions the  debts  incurred  in  aid  of  the  rebellion  were  repudi- 
ated. This  gave  to  some  of  the  states  an  almost  unincumbered 
capital  of  credit.  The  spoliation  of  the  state  began.  Large 
appropriations  for  fictitious  or  criminally  inflated  claims  were 
made.  State  bonds  for  one  scheme  or  another  were  issued, 
and  the  bonds  practically  stolen.  The  accession  of  the  negro 
and  carpet-bagger  to  power  was  followed  by  organizations 
among  the  lawless  white  inhabitants  to  expel  or  punish  the 
carpet-bagger,  and  to  overawe  the  negro.  The  most  formi- 
dable of  these  organizations  was  known  as  the  Kuklux  Klan, 
and  its  acts  of  desperate  and  criminal  violence  made  its  name 
a  terror.  The  national  government  put  forth  the  utmost  ef- 
forts to  crush  it  out  and  punish  its  members.  The  national 
troops  were  quartered  in  various  parts  of  the  Southern  States 
to  preserve  order,  suppress  unlawful  assemblages,  and  secure 
free  and  peaceful  elections. 

Gradually  peace  and  order  were  restored.  As  the  troops 
were  withdrawn,  and  the  disabilities  of  those  who  had  engaged 
in  the  rebellion  were  removed  by  executive  pardon  or  gen- 
eral amnesty,  the  white  inhabitants  at  the  South  united  to 
control  the  elections.  They  did  control  them,  not  by  superior- 
ity of  numbers,  but  by  superior  skill  and  audacity.  So  long 
as  the  law  was  observed  the  negroes  could  outvote  the  whites. 
But  the  whites  disregarded  or  evaded  the  law,  and  when  the 
total  of  the  count  was  announced  the  white  candidates  stood 
at  the  head  of  the  list.  With  the  overthrow  of  the  carpet- 
bagger the  negroes  were  bereft  of  their  political  protectors  and 
leaders,  and  did  not  themselves  have  the  capacity  or  vigor  to 
assert  and  maintain  their  own  rights.  With  the  withdrawal 
of  the  troops  the  republican  ascendency  gave  place  to  the 
democratic,  and  the  white  man's  government  was  restored. 


218  CONSTITUTIONAL  HISTORY. 

Since  the  accession  of  President  Hayes  in  1877,  there  has 
been  a  "solid  South"  in  favor  of  the  democratic  party. 
This  has  been  the  occasion  of  some  bitterness  of  feeling  at  the 
North,  perhaps  more  of  disappointment  and  regret  over  lost 
prestige  and  power,  than  any  well-grounded  claim  that  the 
negroes  as  a  class  have  not  been  humanely  treated.  Their 
right  to  vote  and  to  have  that  vote  freely  cast  and  truly 
counted  is  unquestioned.  Now  that  it  is  fully  declared  and 
established  by  law,  the  best  guarantee  of  the  negro's  realiza- 
tion of  his  right  must  be  found  in  his  own  appreciation  of  its 
value  and  importance.  The  appreciation  of  others  who  sym- 
pathize with  him  must  necessarily  prove  inefficient;  it  will 
be  spasmodic  and  passionate,  and  will  not  escape  the  imputa- 
tion of  finding  its  inspiration  in  a  desire  to  profit#by  the  vote 
itself.  It  would  be  unwise  to  put  him  in  ward,  and  take  his 
guardian's  vote.  Nevertheless,  such  sympathy  and  interest 
will  prove  helpful.  The  character  of  the  South  is  at  stake, 
and,  unless  its  morality  is  abnormal,  it  cannot  long  be  willing 
to  justify  injustice  simply  because  the  object  of  it  is  unable  to 
escape  it. 

Meanwhile  the  negro  has  been  advancing.  Equality  of 
rights  is  guaranteed  by  the  Fourteenth  Amendment.  In 
order  to  give  schools  to  the  white  children,  schools  must  be 
given  to  the  black,  and  they  have  been.  If  in  everything  he 
is  not  the  equal  of  the  white  man  before  the  law,  it  is  be- 
cause he  has  not  yet  become  bold  and  strong  enough  to  enter 
into  the  full  possession  of  his  inheritance.  As  the  war  of  the 
rebellion  recedes  further  and  further  into  the  past,  the  bitter- 
ness which  caused  it,  and  which  it  caused,  is  abating.  The 
negro  will  ultimately  be  accorded  all  that  equality  of  right 
and  of  suffrage  in  this  country  which  he  can  take  and  hold 
without  a  guardian.  How  high  he  will  rise  in  the  scale  of 
ability  and  intelligence  is  a  problem  which  centuries  may  be 
needed  to  solve.  The  prejudice  which  exists  against  him, 
simply  upon  account  of  his  color,  is  peculiar  to  the  provincial 
narrowness  which  we  have  acquired  and  inherited,  and  will 
be  dissipated  with  time,  if  we  advance  in  civilization  and 
knowledge  of  mankind  at  large.  He  will  find  his  true  place, 
and  will  be  estimated  at  his  real  worth.     If  nature  has  so 


I 


MANHOOD   SUFFRAGE  ESTABLISHED.  219 

formed  his  blood  and  brain  and  nerve  that  he  is  doomed  to 
inferiority,  no  human  law  can  avail  against  it,  no  guardian- 
ship will  elevate,  though  it  may  protect  him.  If  his  inferi- 
ority is  the  temporary  result  of  acquired  heredity,  of  centu- 
ries of  barbarous  ancestry  and  neglect,  he  will  resume  under 
better,  conditions  his  original  vigor. 

The  law  at  last  accords  him  justice  and  equality  of  right, 
and  an  equality  of  privilege  with  the  white  man.  He  may 
now  take  that  place  in  life  and  among  men  to  which,  in  the 
words  of  the  Declaration,  "  the  laws  of  nature  and  of  nature's 
God  entitle  him."  For  his  sake  the  law  that  "  is  higher  than 
the  Constitution  "  is  made  part  of  the  Constitution  itself. 

Although  negro  suffrage  was  forced  upon  the  seceded  states, 
it  was  in  mtiny  of  the  Northern  States  only  accorded  to  blacks 
who  had  a  certain  property  or  freehold  qualification.  This 
was  rarely  required  of  the  white  citizen.  This  disparity  of 
privilege  was  removed  by  the  Fifteenth  Amendment  to  the 
Constitution.  This  provides  that  "  The  right  of  citizens  of 
the  United  States  to  vote  shall  not  be  denied  or  abridged  by 
the  United  States,  or  by  any  state,  on  account  of  race,  color, 
or  previous  condition  of  servitude."  No  state  can  now  deny 
the  right  to  vote  to  any  colored  man  except  upon  the  same 
terms  that  it  denies  it  to  the  white  man.  Manhood  suffrage 
thus  becomes  the  almost  universal  rule.  -—    -  ^ 

The  settlement  by  arbitration  of  the  claims  of  the  United 
States  against  England  on  account  of  the  depredations  com- 
mitted during  the  war  by  the  confederate  cruiser,  the  Alabama, 
was  perhaps  the  most  important  event  of  the  administration 
of  General  Grant.  Its  history  has  its  proper  place  in  interna- 
tional law,  but  its  importance  gives  it  the  weight  of  a  constitu- 
tional enactment.  The  Alabama  was  purchased  by  the  Con- 
federacy in  England.  Our  minister  was  advised  of  the  object 
of  her  purchase,  and  he  remonstrated  with  the  English  govern- 
ment against  her  departure.  England  either  disregarded  the 
remonstrance  or  was  tardy  in  attending  to  it.  The  Alabama 
effected  her  departure  from  English  waters  in  July,  1862. 
She  ravaged  our  merchant  marine  until  June  19,  1864,  when 
she  was   sunk  in   an   engagement  with   the  United   States 


220  CONSTITUTIONAL  HISTORY. 

steamer  Kearsarge  off  the  coast  of  France.  She  had  captured 
or  destroyed  fifty-eight  of  our  merchant  vessels.  Our  govern- 
ment claimed  that  England  had  violated  the  laws  of  neutral- 
ity in  permitting,  with  notice  of  her  purpose,  the  Alabama 
to  depart  from  her  shores,  and  that  therefore  she  should  make 
good  the  damages  which  the  owners  of  the  destroyed  property 
had  suffered.  England  was  slow  to  respond  to  this  claim. 
But  finally  in  1870  she  joined  with  the  United  States  in  the 
formation  of  a  commission  of  ten  members,  five  to  be  chosen 
by  each  government,  authorized  to  provide  suitable  measures 
for  the  adjustment  of  all  differences  between  the  two  govern- 
ments. This  commission  provided  by  a  treaty  that  a  tribu- 
nal of  arbitration  to  be  composed  of  five  members,  one  to  be 
chosen  by  each  government,  one  by  the  king  of  Italy,  one  by 
the  president  of  the  Swiss  Confederation,  and  one  by  the 
Emperor  of  Brazil,  should  meet  in  Geneva  and  hear  the  Ala- 
bama claims  and  decide  upon  them.  Three  rules  for  the 
guidance  of  the  tribunal  were  agi-eed  upon.  These  were  in 
substance :  First,  A  neutral  nation  must  be  diligent  to  pre- 
vent the  fitting  out  within,  and  the  departure  from,  its  juris- 
diction of  a  vessel  which  it  has  reason  to  believe  is  to  cruise 
against  a  friendly  power.  Second,  It  must  not  permit  its 
ports  or  waters  to  be  used  as  a  base  of  hostile  naval  operations, 
or  to  obtain  recruits  of  men  or  military  supplies.  Third,  it 
must  be  diligent  to  prevent  such  use  and  the  procurement  of 
such  supplies.  The  tribunal  should  decide  whether  England 
had  violated  either  of  these  rules,  and  if  it  should  find  that  it 
had  it  should  award  damages.  The  tribunal  after  a  full  hear- 
ing awarded  the  United  States  fifteen  millions  of  dollars. 
The  importance  of  this  arbitration  consists  in  its  substitution 
of  peaceful  discussion  and  just  decision  for  the  arbitrament  of 
war  in  national  disputes.  Thus  peace  has  her  victories  no 
less  than  war. 

The  Electoral  Commission  which  awarded  the  presidency 
to  Mr.  Hayes  instead  of  Mr.  Tilden  in  1877  is  an  illustration 
of  the  tendency  of  the  American  people  to  exhaust  all  the 
resources  of  peace  in  the  settlement  of  important  and  excit- 
ing controversies,  and  thus  avert  civil  war. 


INTERSTATE   COMMERCE.  221 

The  result  of  the  election  in  Louisiana,  Florida,  Oregon,  and 
South  Carolina  was  disputed,  and  the  question  was  who  should 
decide  which  presidential  electors  had  been  chosen  and  whose 
votes  should  be  counted.  An  electoral  commission  was  or- 
ganized, under  an  act  of  Congress  passed  for  the  purpose,  and 
it  decided  the  dispute  in  favor  of  Mr.  Hayes.  The  justice 
of  the  decision  was  gravely  challenged,  but  its  validity  was 
universally  acknowledged  and  gratefully  accepted  as  a  happy 
escape  from  a  perilous  situation.  Since  then  Congress  has 
passed  an  act  which  it  is  hoped  will  be  effectual  to  settle  all 
future  difficulties  of  the  like  kind. 

The  administrations  of  Presidents  Hayes,  Arthur,  and 
Cleveland,  were  very  much  alike.  These  three  Presidents 
were  plain  and  honest  gentlemen,  devoted  to  the  welfare  of 
their  country,  without  ostentation  or  attempt  at  brilliant 
measures.  Their  best  qualifications  were  honesty  of  purpose, 
fair  ability,  and  plain  common  sense.  They  took  it  for  granted 
that  the  government  was  happily  constituted,  and  only  needed 
to  be  honestly  and  intelligently  administered. 

The  country  prospered  to  an  almost  fabulous  degree.  The 
prosperity  seems  to  be  substantial,  and  there  is  every  reason 
to  believe  that  it  will  suffer  no  sudden  check. 

Probably  the  most  important  governmental  act  of  any  of 
these  administrations  was  the  passage  of  the  Interstate  Com- 
merce Law  of  1887.  The  interstate  traffic  of  the  country  has 
grown  to  be  enormous.  On  the  first  of  December,  1887,  there 
were  137,986  miles  of  railroad  in  the  country .^  These  roads 
cost  about  seventy-five  hundred  millions  of  dollars.  Two  hun- 
dred and  sixty-seven  and  one  half  millions  of  dollars,  or  about 
three  and  one  half  per  centum  of  this  cost,  was  paid  in  interest 
and  dividends  the  preceding  year.  In  order  to  pay  three  and 
one  half  per  centum,  at  least  five  times  as  much  must  be 
earned.  The  total  earnings,  therefore,  must  have  been  thirteen 
hundred  and  twenty-seven  and  one  half  millions  of  dollars,  a 
sum  of  money  utterly  incomprehensible.  These  figures  give 
no  idea  of  the  value  of  the  property  transported,  and  there  are 
no  means  of  ascertaining  it. 

When  the  Constitution  was  adopted,  interstate  commerce 
^  Report  of  the  Interstate  Commerce  Commission,  1887. 

^UNIV£KSITY   ■ 


222  CONSTITUTIONAL  HISTORY. 

was  comparatively  insignificant.  Not  until  the  advent  of  rail- 
roads was  there  any  great  change.  Railroads  were  constructed 
under  state  laws.  The  nation  only  interposed  through  its 
Supreme  Court  in  order,  when  a  proper  suit  was  brought,  to 
restrain  state  interference  with  interstate  commerce  or  taxa- 
tion upon  it.  It  did  not  assume  power  to  regulate.  Great 
abuses  arose.  It  is  readily  seen  that  without  equal  rates  for 
equal  privileges,  the  men  or  cities  especially  favored  will  pros- 
per at  the  cost  and  ruin  of  those  who  are  not  so  favored.  The 
main  object  of  the  Interstate  Commerce  Act  is  to  make  the 
rates  of  transportation  from  one  state  to  another,  or  across  one 
or  more  states,  truly  proportional  to  the  actual  value  of  the 
transportation,  and  thus  prevent  giving  to  one  a  favor  which 
must  be  compensated  by  extortion  from  another.  The  nation 
cannot  regulate  the  cost  of  transportation  when  it  begins  and 
ends  within  a  state ;  for  the  grant  of  power  to  Congress  is  to 
regulate  commerce  among  the  several  states.  The  purpose  of 
the  act  is  just,  and  the  act  itself,  if  wisely  administered,  must 
prove  beneficent. 

With  the  decline  of  interest  in  other  questions  the  tariff 
again  rises  to  prominence.  Whether  the  duty  upon  imports 
shall  be  imposed  for  revenue  only,  or  to  protect  our  productions 
against  foreign  competition  in  addition  to  the  provision  for 
the  necessary  revenue,  is  still  vigorously  debated.  The  philo- 
sophical exponents  of  political  economy  generally  insist  that 
the  tariff  should  be  for  revenue  only.  The  practical  effect  of 
such  a  policy  is  free  trade.  The  constitutional  objection  is  no 
longer  urged,  and  the  question  is  one  of  business  expediency 
and  of  common  honesty.  The  free  trade  argument  in  brief  is 
that  no  tax  should  be  levied  except  for  the  use  of  the  govern- 
ment ;  that  any  tax  upon  the  consumer  for  the  support  of  the 
producer  is  a  form  of  extortion  or  robbery ;  that  if  the  duty  is 
limited  to  those  articles  which  we  do  not  produce,  such  as  tea, 
coffee,  spices,  etc.,  then  the  government  receives  the  entire 
avails  of  the  tax,  less  the  mere  cost  of  its  collection.  But  if 
the  duty  is  imposed  upon  imports  of  a  kind  which  we  also  pro- 
duce, as  upon  cloth,  iron,  sugar,  etc.,  then  the  government  re- 
ceives the  tax  upon  the  imported  portions  only,  and  the  home 
producer  receives  it  also  upon  his  production  of  the  like  ar- 


THE  TARIFF  QUESTION.  223 

tides  to  the  extent  that  the  duty  upon  the  imported  articles 
enables  him  to  increase  his  price  upon  his  own  ;  that  such  in- 
crease of  the  price  upon  the  domestic  article  is  a  tax  upon  the 
domestic  consumer  extorted  by  law  from  one  class  for  the  ben- 
efit of  another;  that  its  practical  effect  is  to  make  our  protected 
producers  dependent  upon  their  legal  power  to  collect  a  tax 
for  their  own  profit,  and  not  upon  the  intelligence,  enterprise, 
and  skill  which  competition  with  other  countries  would  evoke 
and  quicken.  These  views  obtain  support  among  those  who 
believe  their  interests  are  injuriously  affected  by  a  protective 
tariff. 

On  the  other  hand  the  protectionist  rejects  free  trade  as  an 
impracticable  theory  and  unsuited  to  American  conditions. 
He  urges  that  the  protective  system  encourages  capital,  skill, 
and  labor  to  embark  in  manufacturing  the  fabrics  for  which 
our  fields,  forests,  and  mines  afford  the  raw  materials  ;  that 
thus  the  avenues  of  industry  are  multiplied,  capital  finds  in- 
vestment, skill  is  stimulated  and  rewarded,  the  resources  of 
the  country  made  available,  the  domestic  markets  enlarged 
and  improved,  and  the  self-dependence,  wealth,  and  prosperity 
of  the  people  increased.  These  general  views  also  obtain  wide 
acceptance.  We  cannot  enter  upon  the  mass  of  details  which 
are  employed  to  support  or  refute  either  contention.  The  im- 
partial reader  of  the  enormous  bulk  of  argumentation  might 
well  conclude  that  the  success  of  the  champion  of  either  side 
depends  in  part  upon  the  facts  adduced,  and  in  part  upon  the 
facts  suppressed.  The  factors  bearing  upon  the  utilitarian  phase 
of  the  argument  are  so  many  that  it  is  not  strange  that  a  cen- 
tury of  experience  and  discussion  has  not  sufficed  properly  to 
adduce  and  correlate  them  all,  and  advance  to  an  irrefragable 
demonstration.  It  is  probably  true  that  a  protective  tariff 
imposes  a  tax  upon  the  consumer  for  the  benefit  of  the  pro- 
ducer. On  the  other  hand  it  is  probably  true  that  the  protec- 
tion of  home  industries  results  in  a  general  benefit,  in  which 
the  consumer  participates.  It  is  not  easy  to  identify  the  par- 
ticulars or  amount  of  the  benefit,  but  the  general  proposition 
cannot  be  easily  disproved,  and  the  persuasion  of  its  truth  at- 
tains a  sort  of  moral  certainty.  Assuming  both  propositions 
to  be  true,  the  practical  question  is,  Which  method  will  result 
in  the  greater  gain  or  loss  ? 


224  CONSTITUTIONAL  HISTORY. 

Behind  the  question  of  mere  utility  lies  the  moral  question 
•whether  the  government  has  the  right  to  permit  the  manu- 
facturer to  take  a  specific  sum  from  the  consumer  against  his 
will,  and  leave  him  no  other  return  or  compensation  than  his 
participation  with  every  other  citizen  in  the  general  benefit 
resulting  from  home  manufacturing? 

The  higher  wages  of  American  labor  affords  the  excuse  or 
justification  for  protection  to  American  manufactures.  Such 
labor  has  always  commanded  a  higher  price  than  European 
labor,  for  the  reason  that  the  price  of  labor  both  here  and 
there  is  regulated  by  the  law  of  supply  and  demand,  but  here 
the  supply  and  the  price  have  been  influenced  by  the  propor- 
tion of  agricultural  returns  to  the  capital  and  labor  invested 
in  agriculture.  In  a  new  country  the  carpenter,  blacksmith, 
and  other  artisans,  who  must  render  their  services  in  the 
locality  where  they  are  needed,  receive  a  wage  proportioned 
in  some  degree  to  the  bounty  of  agricultural  returns  from  the 
cheap  lands.  They  share  in  the  prosperity  of  the  country. 
It  would  be  impossible  at  the  outset  to  obtain  the  necessary 
labor  for  other  manufacturing  operations  unless  the  same  rate 
of  wages  should  be  paid.  But  the  foreign  producer  employs 
his  labor  at  a  decreased  price.  Hence,  unless  the  government 
devises  some  method  of  compensation  for  the  inequality  in 
the  price  of  labor,  it  is  plain  that  the  American  must  delay 
his  competing  manufacturing  undertaking  until  the  price  of 
labor  is  the  same  in  both  countries.  Of  course  the  consumer 
says,  government  has  no  right  to  deprive  him  of  the  privilege 
of  buying  in  the  cheapest  market,  nor  to  create  individual 
loss  in  order  to  promote  the  gain  of  other  individuals  and  the 
general  gain. 

We  do  not  undertake  to  decide  these  questions,  but  only 
seek  to  make  them  intelligible. 

It  will  be  long  before  the  free  trade  system  will  be  adopted. 
Our  markets  are  great,  and  we  feel  that  we  have  the  right  to 
exclude  foreign  wares  from  them  if  it  appears  to  be  our  inter- 
est to  do  so.  Experience  shows  that  the  competition  among 
American  producers  tends  to  reduce  prices  to  the  lowest  rea- 
sonable amount,  often  much  below  that  of  the  imported  arti- 
cle, with  the  tax  added.  The  manifest  tendency  of  the  people 
is  to  reduce  a  protective  tariff  to  the  lowest  adequate  protec- 


FEDERAL  TAXATION.  225 

tive  rate,  to  confine  it  to  those  imports  of  which  labor  forms 
the  larger  part  of  the  value,  and  to  exempt  from  duties  those 
raw  materials  for  manufacturing  which  we  do  not  produce. 

The  system  is  liable  to  great  abuse.  If  the  correct  theory- 
should  be  adopted,  the  utmost  vigilance  would  be  needed  to 
guard  against  abuse  in  its  application. 

It  would  be  fortunate  if  the  whole  matter  could  be  with- 
drawn from  Congress,  and  committed  to  a  tribunal  as  impar- 
tial and  able  as  the  Supreme  Court  of  the  United  States,  with 
power  to  alter  and  modify  the  tariff,  as  the  evidence  submitted 
by  the  government  and  every  party  interested  might  require. 

Closely  connected  with  the  tariff  is  the  question  of  federal 
taxation.  The  states  resort  to  direct  taxation,  the  nation  to 
indirect.  In  the  states  property  is  made  the  subject  of  taxa- 
tion ;  the  theory  being  that  every  one  should  be  taxed  in 
proportion  to  the  amount  of  his  property.  In  the  nation 
every  one  pays  a  tax  in  proportion  to  the  amount  of  his  ulti- 
mate consumption  of  dutiable  articles.  Unless  care  is  taken 
in  laying  the  imposts,  the  man  who  has  the  most  children 
pays  the  most  tax.  The  tariff  therefore  ought  to  be  as  light 
as  possible  upon  the  food  and  clothing  and  other  necessaries 
of  the  poor  man,  and  more  onerous  upon  the  articles  which 
the  wealthy  consume.  In  this  way  the  national  tax  may  be 
levied  in  great  part  upon  those  who  ought  to  pay  it.  In  a 
republic  where  universal  suffrage  has  so  great  power,  and 
may  if  exasperated  make  reprisals  and  repay  in  vengeance, 
it  is  folly  for  wealth  to  seek  to  escape  from  its  just  contri- 
bution to  the  support  of  the  government  even  if  it  has  the 
power. 

We  may  fairly  hope  that  henceforth  our  history  will  prove 
to  be  monotonous.  We  have  reached  the  era  of  great  com- 
mercial and  industrial  enterprises.  Whether  we  have  one 
President  or  another,  one  party  in  power  or  another,  is  of 
little  moment  so  long  as  our  Constitution  is  paramount  and 
wise  laws  prevail.  Let  us  hope  that  the  record  will  be  that 
of  a  people  advancing  in  that  civilization  which  inspires  men 
to  treat  one  anothei  fairly,  and  to  help  one  another  in  all 
reasonable  ways. 

15 


LECTURE   X. 

THE  INFLUENCE   OF  THE  SUPBEME  COURT   UPON  OUR    CON- 
STITUTIONAL DEVELOPMENT  AND   GROWTH. 

It  is  impossible  to  comprehend  the  development  and  growth 
of  our  constitutional  system  without  taking  into  consideration 
the  position  and  influence  of  the  Supreme  Court  of  the  United 
States.     This  body  is  the  final  expounder  of  the  Constitution 
in  all  cases  which  can  be  presented  in  the  form  of  a  suit  at 
law.     The  expounders  of  the  Constitution  hold  an  office  un- 
der it  of  little  less  importance  than  that  of  its  framers.     The 
framers  discharged  their  office  and  rested  from  their  labors. 
The  expounders  are  constant  in  their  office  and  are  seldom  at 
rest.     Judges  die,  but  the  Court  is  immortal.     The  Constitu- 
tion speaks  as  of  the  age  in  which  it  was  written,  more  than  a 
century  ago.     The  Court  expounds  it  in  the  language  of  its 
own  age,  holding  fast  to  the  old  words  and  powers,  but  ex- 
panding them  to  keep  pace  with  the  expansion  of  our  coun- 
try, our  people,  our  enterprises,  industries,  and  civilization. 
Great  controversies  arise  over  questions  and  conditions  im- 
possible for  the  framers  of  the  Constitution  to  have  antici- 
pated.    What  would  they  have  thought,  if  one  had  asked 
them  the  question  whether  a  state  law  regulating  the  trans- 
mission or  taxation  of  telegraphic  messages  between  Kansas 
and  Nevada  would  be  unconstitutional,  because  encroaching 
upon  the  power  of  Congress  to  regulate  commerce  among  the 
states?     Plainly,  a  constitution  made  a  century  ago  might 
well  be  expected  to  prove  inadequate  to  the  wants  of  the  ever 
increasing  population  of   the  United  States.     That  such  is 
not  the  case  is  remarkable  evidence  of  its  wisdom,  and  also 
of  the  wisdom  of  its  exposition.     It  will  be  instructive  to 
glance,  even  hastily  and  imperfectly,  at  the  history  of  the 
Court,  and  its  function  and  influence  in  shaping  our  constitu- 
tional development  and  growth. 


THE  SUPREME  COURT.  22T 

In  the  beginning,  the  judicial  was  apparently  the  least  im- 
portant of  the  three  departments  of  the  government,  and  in 
the  opinion  of  many  has  always  remained  so.  But  the  Court 
has  made  our  dual  system  of  government  possible,  and  in  the 
end  harmonious  and  valuable.  It  was  inevitable  when  the 
functions  of  sovereignty  were  parcelled  between  two  jurisdic- 
tions, and,  in  so  far  as  they  were  reserved  to  the  people,  de- 
nied to  either  jurisdiction,  that  controversies  and  jealousies 
would  arise ;  that  there  would  be  conflicting  interpretations 
of  the  Constitution,  rival  partisans  of  national  and  state  su- 
premacy, encroachments  by  one  jurisdiction  upon  the  other, 
and  sometimes  open  and  undisguised  contempt  of  rightful  au- 
thority. 

The  framers  of  the  Constitution  would  have  been  justly 
subject  to  the  reproach  of  devising  a  system  fraught  with  the 
causes  of  its  own  destruction,  if  they  had  not  also  devised  a 
tribunal  to  settle  the  contentions  which  the  system  was  sure 
to  generate. 

The  Judiciary  Department  was  intended  to  furnish  such 
a  tribunal.  In  the  beginning,  its  opportunity  and  influence 
were  slight ;  its  place  in  the  government  feeble  and  inconse- 
quent. Darkness  and  uncertainty  enveloped  its  powers  and 
jurisdiction,  invited  challenge,  and  promoted  hesitancy.  The 
Court  had  to  await  its  opportunity,  and  then  to  ascertain  its 
jurisdiction  and  the  scope  of  its  powers.  The  problem  was 
whether  it  would  ascertain  aright ;  whether  it  would  clearly 
see,  and  clearly  define,  and  clearly  and  rightly  use  its  powers. 
It  had  not  only  to  wait  for  the  opportunity  to  develop  and 
assert  its  own  power  and  jurisdiction,  but  also  to  wait  for  the 
recognition  of  them  by  the  people.  It  was  overshadowed  in 
the  early  years  of  the  government  by  the  immediate,  active, 
and  dominant  influence  of  the  other  departments.  It  gave, 
during  many  years,  but  feeble  promise  of  its  ultimate  influ- 
ence in  shaping  our  constitutional  growth.  But  it  is  plain 
now  that  we  are  largely  indebted  to  the  Court  for  our  con- 
tinued existence  as  a  nation,  and  for  the  harmony,  stability, 
excellence,  and  success  of  our  federal  system. 

It  is  true  that  it  has  not  had  the  command  of  armies  and 
navies,  it  has  not  had  the  power  of  the  purse ;  it  could  not 


228  CONSTITUTIONAL  HISTORY. 

make  laws  or  repeal  them.  As  has  been  well  said :  "  It  is  a 
power  which  has  no  guards,  palaces,  or  treasuries,  no  arms 
but  truth  and  wisdom,  and  no  splendor  but  its  justice  and 
the  publicity  of  its  judgments."  The  supremacy  of  the 
Court  is  the  result  of  a  natural  growth,  of  a  constant  accumu- 
lation of  influence,  with  little  loss  and  no  decay.  True  con- 
stitutional principles,  when  once  correctly  ascertained  and  in- 
terpreted, remain  forever.  We  have  not  only  the  wisdom  and 
learning  of  the  magistrates  who  sit  in  the  judgment  seat  to- 
day, but  we  have  the  vast  store  of  the  decisions  of  their  pred- 
ecessors. We  are,  no  less  than  the  Court  itself,  the  heirs  of 
the  wisdom  embodied  in  the  recorded  opinions  of  those  who 
have  gone  before.  The  Court  has  all  the  influence  due  to 
itself,  and  all  that  is  due  to  the  wisdom  stored  up  from  the 
beginning.  No  other  department  has  so  rich  an  inheritance. 
Decisions  and  opinions,  which,  in  the  day  of  their  delivery, 
may  not  have  received  the  respect  due  to  their  merit,  in  the 
end  are  sure  to  receive  it.  Truth  and  wisdom  are  the  more 
clearly  perceived  and  recognized,  after  time  has  dissipated 
the  mists  of  passion  and  prejudice  which  at  first  obscured 
them.  The  affairs  of  administration  and  legislation,  however 
imposing  and  commanding  in  their  day,  are  often  as  ephem- 
eral as  the  day  itself.  The  influence  of  the  Court  bides  its 
time ;  the  later  generation  quietly  accepts  the  wise  rule 
which  the  prejudice  of  the  earlier  repudiated. 

The  Court  is  happily  constituted.  A  body  of  learned,  able, 
and  virtuous  men  are  selected  for  judges.  They  realize  their 
duties  and  responsibilities,  and  rise,  if  need  be,  to  the  occa- 
sion. It  is  their  life-work.  The  traditions  and  habits  of  their 
order  become  their  guides  and  guards.  If  they  are  fit  for 
their  place,  they  have  no  ambition  for  other  places.  They 
constitute  the  nation's  official  reserve  of  dispassionate  wisdom 
and  virtue,  for  use  in  seasons  of  passionate  heat  and  contro- 
versy. 

The  influence  of  the  Court  upon  the  other  departments  of 
the  government,  and  upon  the  nation,  states,  and  people,  is 
usually  only  indirect,  but  that  fact,  strange  as  it  may  seem, 
has  rendered  its  influence  more  commanding.  Its  direct 
power  and  influence  are  only  exercised  upon  the  persons  and 


f 


INDIRECT  INFLUENCE  OF  THE  SUP.REME  COURT.    229 

property  affected  by  the  cases  before  it.  The  Court  sits  to 
decide  cases  and  controversies  between  litigants,  that  is,  law- 
suits. The  Court  declares  the  law  for  the  sole  purpose  of  ap- 
plying it  to  the  case  before  it,  in  order  to  decide  it  correctly. 
Strictly  speaking,  when  the  case  is  decided,  nothing  more  is 
decided  or  settled  than  the  suit  between  the  parties  to  it ;  as, 
for  example,  that  the  plaintiff  can  or  cannot  recover  a  certain 
sum  of  money  from  the  defendant.  No  parties  ai:e  before  the 
Court  besides  the  litigants,  and  no  other  parties  are  directly 
bound  by  the  judgment  or  decision.  Such  being  the  case,  it 
would  seem  that  the  decision  could  have  but  little  influence 
upon  any  other  persons  or  matters.  This  is  so  with  respect 
to  the  greater  part  of  the  cases  and  controversies  brought  be- 
fore the  Court.  But  we  need  to  look  further.  The  Consti- 
tution, Art.  3,  sec.  2,  declares  that  the  judicial  power  of  the 
United  States  "  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made  or  which  shall  be  made  under  their  author- 
ity," etc.  Now,  although  it  may  be  true  that  the  decision 
of  a  case  is  only  the  decision  of  the  dispute  or  contention  be- 
tween the  parties,  yet  in  order  to  decide  it,  it  may  be  neces- 
sary to  determine  what  a  certain  clause  or  expression  in  the 
Constitution  means.  If  it  means  what  either  of  the  parties 
contends,  that  party  will  probably  win  his  case. 

Although  the  Court  only  interprets  the  clause  or  expression 
of  the  Constitution  in  order  to  determine  which  party  shall 
prevail,  the  interpretation  declared  by  the  Court  is  not  made 
without  full  examination  and  deliberation,  nor  until  after 
argument  upon  both  sides  has  been  heard.  These  arguments 
are  usually  made  with  all  the  ability  and  learning  which  the 
private  interests  at  stake  can  stimulate  and  command.  The 
interpretation  of  the  Constitution,  when  thus  made  by  the 
Court,  is  probably  a  true  one.  When  such  true  interpretation 
is  once  made  and  declared,  there  is  no  need  of  making  it  other- 
wise or  different  in  any  other  case.  Indeed,  there  can  rarely 
be  any  excuse  for  unsettling  it.  The  practical  result  is,  and 
as  it  inevitably  must  be  among  sensible  people,  that  the  con- 
stitutional interpretation  once  deliberately  made  and  adjudged 
by  the  Court  remains  adjudged  and  settled.     If  any  case  sub 


230  CONSTITUTIONAL   HISTORY. 

sequently  comes  before  the  Court  involving  the  same  question, 
the  decision  already  made  becomes  the  rule  of  decision  for  the 
later  case.  The  decisions  and  opinions  of  the  Court  in  the 
cases  decided  by  it  are  published  in  its  volumes  of  reports, 
and  thus  not  only  become  known,  but  are  permanently  pre- 
served for  future  reference  and  guidance.  If  the  question 
already  decided  by  the  Court  again  arises  between  individu- 
als, their  counsel,  if  learned  in  the  law,  will  advise  them  to 
respect  it  and  avoid  litigation.  If,  notwithstanding  such  ad- 
vice, the  question  is  brought  before  the  Court,  it  will  in  all 
probability  repeat  its  former  decision. 

If  the  same  question  comes  before  the  Congress  of  the 
United  States,  or  before  any  of  the  executive  departments, 
both  Congress  and  the  departments  will,  if  they  be  prudent, 
respect  and  conform  to  the  decision.  Why  should  they  do 
this  if  independent  and  coordinate  departments  of  the  gov- 
ernment ?  Because,  if  they  enact  a  law,  or  make  an  order, 
in  violation  of  the  Constitution  as  the  Supreme  Court  has 
interpreted  it,  they  invite  the  citizen  to  hazard  and  lose  his 
liberty  or  property  upon  their  action.  Thus,  if  the  Supreme 
Court  decide  that  a  certain  order  of  the  President  is  no  de- 
fence to  a  private  citizen  or  to  a  public  officer,  acting  under 
it,  for  the  reason  that  the  President  has  no  constitutional 
power  or  authority  to  make  it,  it  follows  that  a  prudent  re- 
gard for  the  rights  of  the  citizen  or  officer  will  prevent  the 
President  from  repeating  the  like  order.  The  President  will 
not  require  the  citizen  or  officer  to  incur  the  risk  of  litigation 
in  which  he  is  sure  to  be  defeated.  In  like  manner,  if  the 
Supreme  Court  decide  that  an  act  of  Congress,  or  of  a  state 
legislature,  is  unconstitutional,  neither  Congress  nor  the  state 
legislature  would  reenact  such  a  law ;  for  thereby  they  would 
lead  other  persons  into  a  litigation  to  their  injury.  In  addi- 
tion to  these  considerations,  the  respect  accorded  to  the  deci- 
sions of  the  highest  court  in  the  nation  is  very  great,  and  is 
practically  controlling.  Thus  it  is  that  in  many  cases  and 
questions  the  judiciary  has  attained  a  superiority  over  the 
other  departments  of  the  government  and  also  of  the  states ; 
not  in  exact  strictness,  but  as  the  consequential  result  of  the 
decisions  of  the  court  in  cases  between  individuals,  and  also 


SUPERIORITY  DISCLAIMED  231 

because  of  the  prudence  of  the  departments,  and  of  the  states. 
This  result  is  perfectly  natural.  It  has  thus  come  to  pass 
that  the  Court  has  acquired  enormous  influence  —  controlling 
where  it  has  not  assumed  control,  and  obeyed  where  it  has 
issued  no  order. 

This  almost  inevitable  consequence  has  not  been  allowed 
to  obtain  without  repeated  and  vigorous  protest,  —  a  protest 
which  is  constantly  renewed,  but  which  will  be  made  in  vain 
so  long  as  the  Court  rules  departments  and  states  more  by  its 
influence  than  by  its  power. 

President  Jefferson  was  greatly  annoyed  because  the  Su- 
preme Court  in  Marbury  v,  Madison,  a  case  to  which  refer- 
ence will  be  made  hereafter,  reviewed  an  act  of  Congress,  and 
the  action  of  the  President  under  it.  He  characterized  the 
decision  as  "  an  irrelevant  dissertation  of  the  Chief  Justice 
and  bad  law."     He  at  another  time  declared  :  — 

"  That  each  department  of  the  governraent  is  truly  indepeudent  of 
the  others,  and  has  an  equal  right  to  decide  for  itself  what  is  the 
meaning  of  the  Constitution  and  the  laws  submitted  to  its  action." 

This  proposition  is  theoretically  correct.  The  Court,  Dodge 
V,  Woolsey,^  itself  declares  :  — 

**The  departments  of  the  government  are  legislative,  executive, 
and  judicial.  They  are  coordinate  in  degree  to  the  extent  of  the 
powers  delegated  to  each  of  them.  Each  in  the  exercise  of  its  power 
is  independent  of  the  others,  but  all  rightfully  done  by  either  is  bind- 
ing upon  the  others." 

In  another  case,  Mississippi  v.  Andrew  Johnson,^  applica- 
tion was  made  to  file  a  bill  against  the  President  to  enjoin  him 
from  enforcing  the  reconstruction  acts  in  the  State  of  Mis- 
sissippi, upon  the  grounds  that  those  acts  practically  super- 
seded the  government  of  the  state  and  subjected  it  to  mili- 
tary authority  under  the  President.  The  Court  denied  the 
application,  and  said  that  Congress  is  the  legislative  depart- 
ment of  the  government,  "  the  President  is  the  executive 
department.  Neither  can  be  restrained  in  its  action  by  the 
judicial  department ;  though  the  acts  of  both,  when  per- 
formed, are,  in  proper  cases,  subject  to  its  cognizance." 

1  18  How.  347.  2  4  Wallace,  500. 


232  CONSTITUTIONAL  HISTORY. 

The  distinction  is  thus  clearly  intimated  between  the  power 
of  the  Court  to  interfere  with  the  action  of  the  other  depart- 
ments and  its  power  to  determine  upon  the  legal  effect  of 
that  action,  upon  the  rights  of  others  when  performed.  We 
can  readily  believe  that  neither  department  would  repeat  the 
action,  after  the  Court  had  once  decided  that  because  of  its 
unconstitutionality  it  was  void  and  conferred  no  rights,  and 
secured  no  protection. 

President  Jackson  vigorously  asserted  the  same  doctrine 
which  President  Jefferson  had  announced.  The  Supreme 
Court  had  decided  that  the  charter  of  the  Bank  of  the  United 
States  was  constitutional.  The  charter  was  about  expiring, 
and  Congress  passed  a  bill  renewing  and  extending  it.  Presi- 
dent Jackson  said  in  his  veto  message :  — 

"  Each  public  officer  who  takes  au  oath  to  support  the  Constitution 
swears  that  he  will  support  it  as  he  understands  it,  and  not  as  it  is 
understood  by  others.  It  is  as  much  the  duty  of  the  House  of  Repre- 
sentatives, of  the  Senate,  and  of  the  President,  to  decide  upon  the 
constitutionality  of  any  bill  or  resolution  which  may  be  presented 
to  them  for  passage  or  approval,  as  it  is  of  the  supreme  judges  when 
it  may  be  brought  before  them  for  judicial  decision.  The  decision  of 
the  judges  has  no  more  authority  over  Congress  than  the  opinion  of 
Congress  has  over  the  judges,  and  on  that  point  the  President  is  in- 
dependent of  both.  The  authority  of  the  Supreme  Court  must  not, 
therefore,  be  permitted  to  control  the  Congress  or  the  executive  when 
acting  in  their  legislative  capacities." 

No  valid  technical  exception  can  be  taken  to  this  reason- 
ing, when  applied  by  the  President  or  by  Congress,  to  justify 
a  veto  of  a  bill  or  a  vote  against  it.  A  rejected  bill  can  never 
come  before  the  Supreme  Court  for  its  decision,  and  therefore 
no  officer  or  individual  can  ever  have  his  rights  or  property 
dependent  upon  the  construction  which  the  Supreme  Court 
may  entertain  respecting  such  a  bill.  President  Jackson  ap- 
plied his  doctrine  in  support  of  a  veto,  and  therefore  kept 
strictly  within  his  constitutional  right.  But  suppose  the 
Supreme  Court  had  held  that  the  old  charter  of  the  Bank 
was  unconstitutional,  and  the  President  and  Congress  had, 
notwithstanding  the  decision,  granted  the  new  charter,  and 
the  public  had  disregarded  the  Supreme  Court  and  embarked 


STABILITY   OF  THE   COURT.  233 

their  money  in  the  new  bank.  It  is  easy  to  see  that  im- 
mense losses  would  have  occurred,  and  that  the  President  and 
Congress  would  have  been  justly  blamable. 

But  the  true  reason  why  the  decisions  of  the  Supreme 
Court  should  be  respected  by  the  President  and  by  Congress 
is  that  its  judgment,  made  in  the  cases  brought  before  it,  is 
the  highest  authoritative  expression  of 'the  national  will  and 
understanding  respecting  the  interpretation  of  the  Constitu- 
tion and  the  laws  which  we  are  able  to  obtain.  The  judg- 
ment of  the  highest  court  declaring  the  meaning  of  the  law  is 
intended  by  our  form  of  government  to  be  the  best  authority 
obtainable  respecting  that  meaning.  That  is  so,  in  the  very 
nature  of  the  case.  Our  system  proceeds  upon  the  theory 
that  the  judges  are  learned  in  the  law,  that  they  are  its  im- 
partial interpreters ;  that  the  executive,  the  Congress,  the 
people,  are  less  learned,  less  reliable,  more  influenced  by  pas- 
sion, prejudice,  and  interest.  The  welfare  of  the  community 
requires  that  we  shall  have  the  best  obtainable  interpretation 
of  the  Constitution  and  laws,  and  we  have  therefore  provided 
the  best  tribunal  we  could  devise  to  secure  it  to  us ;  and  hence 
when  this  tribunal  gives  us  what  it  was  appointed  to  give,  it 
is  imprudent  for  President,  Congress,  or  people  to  substitute 
for  it  their  interpretation,  which  may  be  based  upon  interest, 
partisanship,  or  prejudice. 

Moreover,  the  meaning  of  the  Constitution  and  laws  should 
be  fixed  and  stable.  It  is  the  peculiar  excellence  of  the  courts 
that  they  are  stability  itself,  as  compared  with  the  other  de- 
partments. Truth  is  required  ;  it  is  the  duty  of  the  courts  to 
ascertain  and  declare  it,  if  necessary  to  their  judgments.  The 
judges  hold  office  for  life;  thus  all  possible  stability  which 
mortality  permits  is  given  to  the  personality  of  the  Court. 
The  other  departments  change  with  the  changes  in  the  public 
temper  and  interest.  Safely  so,  so  long  as  we  have  a  govern- 
ment of  laws  whose  meaning  and  force  are  not  dependent 
upon  these  changes. 

Grant  that  the  Court  is  occasionally  in  error;  two  remedies 
exist:  one  an  amendment  to  the  Constitution,  —  a  remedy  ap- 
plied in  the  Eleventh,  Thirteenth,  Fourteenth,  and  Ffteenth 
amendments  to  the  Constitution  ;  the  other,  a  reconsideration 


234  CONSTITUTIONAL  HISTORY. 

of  its  decision  by  the  Court  itself,  —  a  reconsideration  which, 
if  permitted,  will  be  made  upon  solemn  argument,  — an  argu- 
ment which  will  be  presented  with  all  the  ability  and  force 
which  the  keenest  and  strongest  minds,  quickened  and 
strengthened  by  every  consideration  of  interest,  feeling,  and 
ambition,  can  bring  to  the  work. 

Mr.  Madison  was  originally  of  opinion  that  the  Congress 
had  no  power  to  charter  the  Bank  of  the  United  States. 
Nevertheless,  in  1817,  as  President,  he  approved  the  bill  for 
its  re-charter.  He  gave  as  the  reason  for  his  action  that  he 
felt  it  to  be  his  duty  to  yield  his  own  opinion  to  the  vast  and 
uniform  weight  of  congressional  and  national  opinion  for 
twenty  years. 

He  wrote  in  1832 :  — 

**  The  act  originally  establishing  a  bank  had  undergone  ample  dis- 
cussions in  its  passage  through  the  several  branches  of  the  govern- 
ment. It  had  been  carried  into  execution  throughout  a  period  of 
twenty  years,  with  annual  legislative  recognitions,  and  with  the  entire 
acquiescence  of  all  the  local  authorities,  as  well  as  of  the  nation  at 
large.  A  veto  from  the  executive  under  these  circumstances  would 
have  been  a  defiance  of  all  the  obligations  derived  from  a  course  of 
precedents  amounting  to  the  requisite  evidence  of  the  national  judg- 
ment and  intention." 

The  executive  and  legislative  departments  may,  without 
technical  impropriety,  follow  their  own  judgment  with  respect 
to  the  constitutionality  of  their  action,  notwithstanding  the 
contrary  opinion  of  the  Court  previously  expressed  in  a  simi- 
lar case,  whenever  their  action  cannot  result  in  a  litigation  to 
be  decided  by  the  Court.  It  is  improbable  that  such  action 
by  the  departments  will  be»  of  frequent  occurrence. 

President  Lincoln,  in  his  first  inaugural  address,  referring 
to  the  then  recent  Dred  Scott  decision,  said:  — 

"  I  do  not  forget  the  position,  assumed  by  some,  that  constitutional 
questions  are  to  be  decided  by  the  Supreme  Court,  nor  do  I  deny 
that  such  decisions  must  be  binding  upon  the  parties  to  that  suit, 
while  they  are  also  entitled  to  very  high  respect  and  consideration  in 
all  parallel  cases  by  all  departments  of  the  government.  .  .  .  But  if 
the  policy  of  the  government,  upon  the  vital  questions  affecting  the 
whole  people,  is  to  be  irrevocably  fixed  by  the  decisions  of  the  Su- 


MR.  MADISON'S   OPINION".  235 

preme  Court  the  moment  they  are  made,  as  in  ordinary  cases  be- 
tween parties  in  personal  actions,  the  people  will  have  ceased  to  be 
their  own  masters,  having  to  that  extent  resigned  their  government 
into  the  hands  of  that  eminent  tribunal." 

Now  the  Dred  Scott  decision  was  at  variance  with  the 
sentiment  of  the  anti-slavery  portion  of  our  people,  and  in 
due  time,  when  they  had  the  power,  they  reversed  it  by 
amendments  to  the  Constitution. 

In  the  sense  that  an  amendment  to  the  Constitution  can 
reverse  the  decision  of  the  Court  upon  a  question  of  constitu- 
tional construction,  President  Lincoln  was  speaking  the  lan- 
guage of  prophecy,  and  within  reasonable  limits.  But  so  long 
as  the  Court  adheres  to  the  construction  pronounced,  it  will  be 
useless  to  exclaim  against  it,  with  respect  to  action  which  will 
result  in  bringing  litigants  before  the  Court.  The  instances 
cited  are  illustrative  of  the  opposition  which  the  Court  has 
overcome  by  its  constantly  growing  influence,  upon  its  way 
from  comparative  insignificance  to  recognized  supremacy. 

Mr.  Madison  in  1834,  perhaps  without  fully  realizing  that 
which  our  subsequent  experience  has  made  clearer,  the  danger 
of  anarchy  which  must  result  if  the  decisions  of  the  Supreme 
Court  should  not  be  respected  by  the  other  departments  of  the 
government,  wrote :  — 

"  Without  losing  sight,  therefore,  of  the  coordinate  relations  of  the 
three  departments  to  each  other,  it  may  be  expected  that  the  judicial 
bench,  when  happily  filled,  will  most  engage  the  respect  and  reliance 
of  the  public  as  the  surest  expositor  of  the  Constitution,  as  well  of 
questions  within  its  cognizance  concerning  the  boundaries  between 
those  of  the  several  departments  of  the  government,  as  in  those  be- 
tween the  Union  and  its  members." 

While  the  Court  will  not  in  any  way  attempt  to  control  ex- 
ecutive action,  that  is,  action  which  involves  judgment  and 
discretion,  but  will  limit  its  judgments  to  declaring  the  validity 
of  acts  after  they  have  been  performed,  and  rights  are  asserted 
under  them  ;  still  the  Court  will,  after  the  judgment  and  dis- 
cretion of  the  executive  officer  have  been  exercised  in  favor  of 
an  individual,  direct  the  performance  by  the  executive  officer 
of  the  purely  ministerial  acts  necessary  to  place  the  individual 
in  possession  of  his  rights,  or  of  the  title  to  them.     Thus,  when 


236  CONSTITUTIONAL  HISTORY. 

Mr.  Schurz  was  Secretary  of  the  Interior,  a  patent  for  lands 
had  been  signed  hj  the  President,  sealed  and  recorded,  and 
was  ready  for  delivery.  Mr.  Schurz  caused  delivery  to  be 
withheld,  but  the  Court  compelled  delivery  upon  the  ground 
that  the  proper  departments  had  exercised  their  judgment  and 
discretion  and  had  awarded  and  executed  the  patent,  and 
thereupon  the  claimant  was  entitled  to  it ;  and  as  nothing  re- 
mained to  be  done  but  the  mere  act  of  handing  him  the  paper, 
it  was  proper  for  the  Court  to  direct  that  act  to  be  performed.^ 
This  exception  to  the  general  rule  was  adopted  after  the  ma- 
turest  consideration,  and  serves  to  illustrate  the  careful  ob- 
servation of  the  rule  itself. 

The  Supreme  Court  early  recognized  the  separation  of  the 
judicial  from  the  other  departments  of  the  government  by  its 
refusal  to  perform  any  other  than  judicial  labor.  In  1792, 
Congress  passed  an  act  requiring  the  circuit  courts  to  examine 
into  claims  for  pensions  and  certify  to  the  Secretary  of  War 
such  as  they  should  find  to  be  valid,  together  with  the  amount 
to  be  allowed.  The  courts  refused  to  perform  this  function 
because  it  was  not  a  judicial  one  in  the  sense  of  the  Constitu- 
tion. The  judicial  power  there  mentioned  is  the  power  to  de- 
termine cases  and  controversies  in  the  nature  of  litigations. 
Several  of  the  j  udges,  however,  consented  to  act,  out  of  court, 
as  commissioners,  from  sympathy  with  the  meritorious  charac- 
ter of  the  claims.  But  as  now  understood  the  judges  could 
not  act  as  commissioners,  for  the  reason  that  such  an  office  is 
distinct  from  the  judicial  office,  and  to  exist  must  be  specially 
created.2 

It  follows  from  the  nature  of  the  judicial  office  that  the 
Court  has  no  power  to  enforce  its  own  judgments.  Its  duty  is 
to  pronounce  judgment  in  the  cases  brought  before  it.  How 
and  in  what  manner  the  judgment  shall  be  executed,  it  is  for 
Congress  by  law  to  provide.  The  theory  is  that  Congress 
will  provide  amply  for  the  fullest  execution  of  the  decrees  of 
the  Court,  and  that  behind  the  officers  charged  with  this  exe- 
cution stands  the  whole  physical  force  of  the  nation.  If  obe- 
dience is  withheld  or  delayed,  the  Executive  Department  will 

1  United  States  v.  Schurz,  102  U.  S.  Rep.  378. 

2  United  States  v.  Ferreira,  13  How.  373. 


INSTANCES  OF  DISRESPECT.  237 

summon  as  much  of  this  force  as  may  be  necessary.  The  fact 
that  this  is  so  ordinarily  makes  the  employment  of  force  un- 
necessary. 

Theoretically,  the  Court  is  absolutely  powerless.  Practi- 
cally, the  whole  force  of  the  nation  is  at  its  bidding.  Presi- 
dent Jackson,  however,  refused  to  enforce  its  judgment  in  the 
case  of  Worcester  against  the  State  of  Georgia.^  In  that  case, 
the  State  of  Georgia  had  made  a  law,  subjecting  to  punishment 
all  white  persons  residing  within  the  limits  of  the  Cherokee 
Nation  who  had  not  obtained  a  license  from  the  state  to  reside 
there,  and  also  taken  an  oath  of  allegiance  to  the  state.  This 
law  authorized  the  arrest  of  such  persons  within  the  limits  of 
the  Cherokee  Nation,  their  forcible  removal  therefrom,  and 
their  trial  for  the  offence  by  the  courts  of  the  state. 

Worcester  was  a  native  of  Vermont,  and  in  1831  he  was 
sent,  under  the  permission  of  President  Adams,  as  a  mission- 
ary to  the  Cherokee  Nation  by  the  American  Board  of  Com- 
missioners for  Foreign  Missions.  He  there  engaged  as  a 
preacher  and  teacher  among  the  Indians.  He  obtained  no 
license  from  the  state.  The  State  of  Georgia  claimed  that  the 
territory  occupied  by  the  Cherokee  Nation  was  within  her 
jurisdiction.  It  was  within  her  geographical  limits.  But  the 
United  States  had  made  a  treaty  with  the  nation,  and  the 
treaty  recognized  the  nation  as  a  distinct,  separate  political 
community,  authorized  to  govern  within  its  own  territory, 
wholly  exempt  from  the  control  of  the  State  of  Georgia.  The 
State  of  Georgia  caused  Worcester's  arrest  within  the  limits  of 
the  nation,  and  he  was  tried  in  the  state  court  for  a  violation 
of  the  state  law,  and  was  sentenced  to  imprisonment  for  four 
years  in  the  state  penitentiary.  The  case  was  brought  before 
the  Supreme  Court  of  the  United  States,  and  that  Court  held 
that  the  treaty  was  the  supreme  law,  and  reversed  the  convic- 
tion. Worcester  ought  thereupon  to  have  been  set  at  liberty. 
But  he  was  not.  This  was  in  1833.  President  Jackson  took 
sides  with  the  state.  He  is  said  to  have  remarked,  *'  John 
Marshall  has  made  his  decision,  now  let  him  execute  it." 
Worcester  remained  in  prison  until  the  governor  of  the  state, 
conceiving  that  he  had  won  the  victory,  pardoned  him.     The 

1  6  Peters,  515. 


238  CONSTITUTIONAL  HISTORY. 

fact  was,  the  state  was  covetous  of  the  lands  occupied  by  the 
Cherokees,  and  the  state  sovereignty  doctrine  of  that  day  af- 
forded a  basis  upon  which  she  waged  and  won  her  battle 
against  the  United  States.  The  final  result  was  that  the 
Cherokee  Indians  were  persuaded  by  the  United  States  to 
leave  the  State  of  Georgia,  and  take  up  their  abode  in  the 
Indian  Territory  upon  the  eastern  slope  of  the  Rocky  Moun- 
tains. The  persuasion  was  reinforced  by  money  and  the  pres- 
ence of  several  thousand  troops  under  the  command  of  Gen- 
eral Winfield  Scott. 

It  was  obviously  the  duty  of  President  Jackson  to  give  his 
support  to  the  judgment  of  the  Supreme  Court,  under  his  con- 
stitutional obligation  to  "  take  care  that  the  laws  be  faithfully 
executed."  But  how  far  he  should  risk  armed  collision  by 
the  United  States  with  the  State  of  Georgia  in  enforcing  the 
judgment  was  a  prudential  question,  in  respect  to  which  it 
was  his  right  and  duty  to  exercise  his  own  judgment. 

In  another  case  in  that  state  a  man  was  convicted  by  the 
state  court  of  murder,  alleged  to  have  been  committed  in  the 
territory  of  the  Creek  Indians.  The  United  States  had  a 
treaty  with  this  tribe  also,  and  by  this  treaty  the  tribe,  and 
not  the  state,  had  jurisdiction  to  try  the  murderer.  After 
the  man  was  convicted,  the  Supreme  Court  issued  its  writ  in 
order  that  the  case  might  be  reviewed  in  that  Court.  This 
action  by  the  Supreme  Court  was  treated  by  the  State  of 
Georgia  as  a  great  and  utterly  unsupportable  piece  of  arro- 
gance and  pretension,  which  a  proper  sense  of  her  indepen- 
dence and  sovereignty  required  her  to  resent  and  resist.  When 
the  writ  from  the  Supreme  Court  was  served,  commanding 
the  state  court  in  the  usual  form  to  make  return  to  the  for- 
mer court  of  its  judgment,  and  of  the  proceedings  which  led 
to  it,  the  excitement  in  the  state  became  very  great,  and 
found  expression  in  extravagant  language.  The  legislature  of 
Georgia  adopted  the  following  resolution  :  — 

"  Resolved,  That  his  excellency,  the  governor,  be  and  he  is  hereby 
authorized  and  required,  with  all  the  force  and  means  placed  at  his 
command  by  the  Constitution  and  laws  of  this  state,  to  resist  and 
repel  any  and  every  invasion,  from  whatever  quarter,  upon  the  ad- 
ministration of  the  criminal  laws  of  this  state." 


DISOBEDIENCE   IN  WISCONSIN.  239 

The  state  court  refused  to  make  the  return.  The  Supreme 
Court  had  no  power  to  enforce  its  writ.  The  President  of  the 
United  States  did  not  choose  to  enforce  it,  and  the  prisoner 
was  hung. 

As  late  as  1855,  in  the  State  of  Wisconsin,  the  authority  of 
the   United  States  Supreme  Court  was  practically  and  suc- 
cessfully nullified.     The  case  arose  under  the  Fugitive  Slave 
Law  of   1850.     One  Booth  was  charged  before   the  United 
States  commissioner  with  having,  in  March,  1854,  aided  and 
abetted  at  Milwaukee  the  escape  of  a  fugitive  slave  from  the 
deputy  marshal.      Booth  was  held  to  bail  to  appear  before 
the  District  Court  of  the  United  States  for  Wisconsin,  and 
answer  the  charge  at  the  following  July  term.    But  before  the 
District  Court  met.  Booth's   bondsmen,  probably  to  aid  his 
escape,  surrendered  him  again  to  the  marshal,  who,  upon  the 
order  of  the  United  States  commissioner,  lodged  him  in  jail. 
Booth  then  applied  to  a  state  judge  for  a  writ  of  habeas  cor- 
pus^ which  was  issued,  and  upon  a  hearing  this  judge  dis- 
charged him,  holding  that  the  Fugitive  Slave  Law  was  uncon- 
stitutional.    This  decision  was  brought  by  appeal  before  the 
state  court  and  affirmed.     From  this  decision  an  appeal  was 
in  due  form  taken  to  the  United  States  Supreme  Court.     But 
before  the  case  was  reached  for  argument  in  the  latter  court. 
Booth  was  indicted  in  the  District  Court  of  the  United  States 
for  aiding  and  abetting  the  escape  of  the  slave  from  the  cus- 
tody of  the  marshal.     He  was  tried,  found  guilty,  and  was 
sentenced  to  pay  a  fine  of  $1,000,  and  be  confined  in  jail  one 
month,  and  until  the  fine  should  be  paid.     Booth,  now  be- 
ing in  jail,  applied  to  the  supreme  court  of  the  state  for  a 
writ  of  habeas  corpus,  and  the  state  court  granted  the  writ, 
and,  notwithstanding  his  conviction  and  sentence  in  the  Dis- 
trict Court  of  the  United  States,  he  was  discharged,  the  state 
court  again  holding  the  Fugitive  Slave  Law  to  be  unconstitu- 
tional.    The  Attorney  General  of  the  United  States  now  ap- 
plied to  the  Chief  Justice  of  the  United  States,  and  obtained  a 
writ  of  error  commanding  the  state  court  to  make  return  of 
its  judgments  and  proceedings,  to  the  end  that  its  decision 
and  judgment  upon  the  habeas  corpus  might  be  reviewed. 
But  the  state  court,  following  the  Georgia  precedent  of  a 


240  CONSTITUTIONAL  HISTORY. 

quarter  of  a  century  before,  refused  to  obey  the  writ,  and 
directed  its  clerk  to  disregard  it,  and  it  was  disregarded.  The 
Attorney  General,  thereupon,  procured  copies  of  the  record 
and  proceedings  and  brought  them  into  the  United  States 
Supreme  Court,  and  that  court,  as  in  the  case  already  referred 
to  of  Worcester  against  the  State  of  Georgia,  did  review  and 
reverse  the  decision  and  judgment  of  the  state  court.  Booth, 
however,  never  appeared  in  the  United  States  court,  nor  sub- 
mitted to  its  authority,  and  consequently  never  was  punished 
according  to  the  sentence  of  the  District  Court.^  No  doubt, 
the  action  of  the  Wisconsin  court  was  just  as  revolutionary  as 
the  similar  action  in  the  Georgia  cases.  In  both  states  popu- 
lar opinion  defied  the  supreme  law. 

In  1861,  at  the  outbreak  of  the  rebellion,  one  Merryman 
was  arrested  by  military  authority  in  Maryland  for  supposed 
treasonable  practices.  Chief  Justice  Taney  issued  a  writ  of 
habeas  corpus  to  inquire  into  the  cause  of  his  imprisonment. 
President  Lincoln  directed  the  officer  to  refuse  obedience  to 
the  writ,  and  declared  the  writ  suspended  in  his  case.  The 
Constitution  provides  that  "  the  privilege  of  the  writ  of  ha- 
beas corpus  shall  not  be  suspended,  except  when,  in  cases  of 
rebellion  or  invasion,  the  public  safety  may  require  it."  (Art. 
1,  sec.  9.)  Congress  was  not  then  in  session.  The  Chief 
Justice  held  that  Congress  only  could  direct  the  suspension  of 
the  privilege  of  the  writ.  But  the  President  held  otherwise, 
and  as  he  had  the  power,  he  refused  to  yield  obedience  to  the 
order  of  the  Chief  Justice.  Congress  subsequently  sustained 
the  President. 

A  becoming  respect  for  the  authority  of  the  judiciary  re- 
quired the  President  to  yield  to  the  authority  of  the  Court  in 
a  case  in  which  it  clearly  had  jurisdiction.  But  laws  are  silent 
in  war  and  great  public  danger.  The  wise  ruler  who  is  then 
charged  with  the  public  safety  must,  if  Congress  is  not  in  ses- 
sion, seize  with  quick  hand  the  executive  constitutional  means 
to  avert  war  and  restore  peace. 

These  refractory  cases,  interesting  as  they  are,  are  excep- 
tions. They  serve  to  illustrate  the  fact  that  the  judicial 
power  and  influence,  in  the  formative  stages  of  our  constitu- 
1  Ableman  v.  Booth,  21  How.  506. 


NARROW  CONSTITUTIONAL  GUARANTEE.  241 

tional  growth,  did  not  always  command  complete  respect,  or 
were  thrust  aside  under  pressure  of  popular  opposition. 

Mr.  Hamilton,  in  the  seventy-eighth  number  of  "  The  Fed- 
eralist," remarked :  — 

"  The  judiciary  from  the  nature  of  its  functions  will  always  be  the 
least  dangerous  to  the  political  rights  of  the  Constitution,  because  it 
will  be  least  in  a  capacity  to  annoy  or  injure  them.  The  executive 
not  only  dispenses  the  honors,  but  holds  the  sword  of  the  community  ; 
the  legislature  not  only  commands  the  purse,  but  prescribes  the  rules 
by  which  the  duties  and  rights  of  every  citizen  are  to  be  regulated ; 
the  judiciary,  on  the  contrary,  has  no  influence  over  the  sword  or  the 
purse ;  no  direction  either  of  the  strength  or  of  the  wealth  of  the 
society,  and  can  take  no  active  resolution  whatever.  It  may  be  said 
to  have  neither  force  nor  will,  but  merely  judgment,  and  must  ulti- 
mately depend  upon  the  aid  of  the  executive  arm  for  the  efficacious 
exercise  even  of  this  faculty." 

He  further  remarked  :  — 

*'  The  judiciary  is  beyond  question  the  weakest  of  the  three  de-. 
partments  of  power ;  it  can  never  attack  with  success  either  of  the 
_otber  two,  and  all  possible  care  is  requisite  to  enable  it  to  defend  it- 
^,  self  against  their  attacks." 

Under  our  happy  experience  the  influence  of  the  Supreme 
Court  has  proved  to  be  really  greater  than  the  power  actually 
conferred  upon  it;  an  influence  which  Mr.  Hamilton  could 
not  foresee  or  accurately  estimate,  but  which  in  its  practical 
results  has  proved  as  great  as  if  it  had  been  expressly  pro- 
vided for  by  the  Constitution  itself.  Mr.  Hamilton  was  quite 
right  in  his  remark  that  "  all  possible  care  is  requisite  to 
enable  it  to  defend  itself  against  their  attacks." 

Indeed,  the  Supreme  Court  has  a  very  narrow  constitu- 
tional guarantee  of  position  and  jurisdiction.  The  third  arti- 
cle of  the  Constitution  provides  for  its  existence  and  limits 
its  jurisdiction.  The  first  section  provides  that  "  the  judicial 
power  of  the  United  States  shall  be  vested  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish."  Thus  the  Constitution 
enjoins  upon  Congress  to  ordain  and  establish  one  Supreme 
Court.  Congress  may  establish  it  as  it  thinks  proper.  It 
may  add  to  or  take  away  from  the  number  of  its  judges.    This 

16 


242  CONSTITUTIONAL  HISTORY. 

power  is  undoubtedly  large  enough  to  enable  Congress  greatly 
to  impair,  if  not  substantially  to  destroy,  this  Court.  Congress 
may  also  tamper  with  and  practically  destroy  its  most  impor- 
tant jurisdiction. 

The  second  section  provides  that  "  the  judicial  power  shall 
extend  to  all  cases,  in  law  and  equity,  arising  under  this  Con- 
stitution, tbe  laws  of  the  United  States,  and  treaties  made,  or 
which  shall  be  made,  under  their  authority,"  also  to  cases  of 
admiralty  and  maritime  jurisdiction  ;  but  with  respect  to  these 
cases  it  is  provided  that  the  Supreme  Court  shall  have  appel- 
late, not  original  jurisdiction,  both  as  to  law  and  fact,  "  with 
such  exceptions,  and  under  such  regulations,  as  the  Congress 
shall  make."  The  litigation  which  comes  before  the  Court, 
involving  constitutional  questions,  arises  in  "  cases  under  this 
Constitution."  Since  Congress  has  the  constitutional  power 
to  make  such  exceptions  to  the  appellate  jurisdiction  of  the 
Court  as  it  thinks  proper,  it  follows  that  the  great  jurisdic- 
tion specified  in  the  Constitution  is  by  the  Constitution  itself 
subjected  to  congressional  exceptions  and  regulations,  and 
therefore  the  Court  is  largely  at  the  mercy  of  Congress. 

In  a  rapid  sketch  of  the  history  of  the  Court,  we  shall  see 
that  Congress  has,  in  a  few  instances,  tampered  both  with  its 
organization  and  its  jurisdiction.  Fortunately,  the  instances 
are  rare.  The  efficiency  of  its  organization  and  the  scope  of 
its  jurisdiction  have  in  the  main  been  carefully  regulated  and 
preserved. 

On  the  24th  day  of  September,  1789,  the  act  organizing 
the  Supreme  Court  was  passed.  The  Court  was  constituted 
with  a  Chief  Justice  and  five  associates.  John  Jay  was  ap- 
pointed the  first  Chief  Justice  by  Washington.  Webster 
said  of  him  that  when  the  ermine  fell  upon  his  shoulders,  it 
touched  a  being  as  spotless  as  itself.  The  Court  first  con- 
vened in  February,  1790,  in  New  York.  It  does  not  appear 
from  the  reports  that  any  case  then  came  before  it.  Jay  re- 
mained Chief  Justice  until  1795,  when  he  resigned  to  become 
governor  of  the  State  of  New  Y'ork.  A  chief  justice  in  our 
day  would  hardly  do  this.  His  judicial  duties  were  so  few 
that  he  found  time,  in  1794,  to  accept  the  mission  to  Eng- 
land to  negotiate  the  treaty  so  famous  in  history  as  ''  Jay's 


.     CHIEF  JUSTICES.  243 

Treaty."  John  Rutledge  of  South  Carolina  was  appointed 
to  succeed  Jay,  but  he  was  so  pronounced  in  his  opposition  to 
the  treaty,  and  so  bitter  in  his  denunciation  of  Jay  himself, 
that  the  federal  Senate  refused  to  confirm  him.  William 
Cushing  of  Massachusetts,  one  of  the  associate  justices,  was 
then  nominated  by  Washington,  and  was  promptly  confirmed ; 
but  he  preferred  to  remain  associate  justice,  and  Oliver  Ells- 
worth of  Connecticut  was  made  Chief  Justice.  He  held  the 
ofiice  until  1801,  when  John  Marshall  of  Virginia  was  ap- 
pointed by  President  Adams.  Marshall  held  the  office  thirty- 
four  years.  He  was  known  at  the  time  of  his  appointment 
as  an  ardent  Federalist.  In  our  time  he  is  known  as  "  the 
great  Chief  Justice."  Roger  B.  Taney  was  the  next  incum- 
bent. He  was  appointed  by  President  Jackson.  His  polit- 
ical enemies  styled  him  a  renegade  Federalist,  and  said  that 
his  appointment  was  his  reward  for  his  obsequious  obedience, 
while  Secretary  of  the  Treasury,  to  President  Jackson.  But 
Taney,  despite  the  Dred  Scott  decision,  was  an  honest  man 
and  a  great  judge.  His  opinions  are  models  of  lucid  and 
orderly  discussion,  and  are  of  admirable  literary  form.  He 
held  the  office  for  twenty-eight  years,  and  upon  his  death  in 
1864,  President  Lincoln  appointed  Salmon  P.  Chase,  of  Ohio. 
Chief  Justice  Chase  died  in  1874.  President  Grant  then  ap- 
pointed Morrison  R.  Waite  of  Ohio.  He  died  in  1888.  Mel- 
ville W.  Fuller,  of  Illinois  is  the  present  incumbent,  his  ap- 
pointment having  been  made  by  President  Cleveland. 

Of  the  associate  justices  there  is  but  little  to  be  said.  In- 
deed, what  more  need  be  said  of  a  body  of  learned  and  virtu- 
ous men,  sworn  "  to  administer  justice  without  respect  to  per- 
sons, and  do  equal  right  to  the  poor  and  the  rich,"  than  that 
they  live  and  labor  in  the  earnest  and  faithful  discharge  of 
their  solemn  obligations  ? 

In  1807  an  associate  judge  was  added  by  Congress;  two 
more  were  added  in  1837,  and  one  in  1863.  They  were 
added  to  enable  the  Court  to  perform  the  work  of  the  circuits, 
which  increased  with  the  growth  of  the  country. 

In  1865  Judge  Catron  died.  Andrew  Johnson  was  Presi- 
dent. Congress  had  entered  upon  that  long  struggle  with  the 
President  with  respect  to  the  reconstruction  of  the  seceded 


244  CONSTITUTIONAL  HISTORY. 

states,  which  has  been  previously  mentioned.  Congress 
ttought  proper  to  govern  these  states  by  military  commission 
until  they  should  conform  to  certain  prescribed  requirements, 
and  adopt  the  Fourteenth  Amendment  proposed  to  the  Con- 
stitution. The  President  vetoed  the  acts  of  Congress,  and 
Congress  passed  them  over  his  veto.  It  was  probable  that  in 
some  form  the  constitutionality  of  these  acts  of  Congress 
would  come  before  the  Court  for  decision,  and  Congress  did 
not  wish  the  President  to  fill  Judge  Catron's  place.  Accord- 
ingly a  law  was  passed,  over  the  President's  veto,  forbidding 
the  filling  of  any  vacancy  until  the  number  of  associate  judges 
should  be  reduced  to  six ;  the  whole  number  of  associates  hav- 
ing previously  been  nine.  Tliis  was  undoubtedly  a  violent 
exercise  of  partisan  power. 

Judge  Wayne  died  in  1867.  The  Court,  now  constituted 
of  the  chief  justice  and  seven  associates,  was  called  upon  to 
decide  whether  the  act  of  Congress  making  the  United  States 
notes,  commonly  called  "greenbacks,"  a  legal  tender  was 
constitutional  so  far  as  it  applied  to  contracts  before  its  pas- 
sage. The  Court  in  1869,  by  a  vote  of  five  to  three,  decided 
that  it  was  unconstitutional.  By  an  act  of  Congress  of  April, 
1869,  General  Grant  having  become  President,  the  appoint- 
ment of  an  additional  justice  was  authorized.  Judge  Grier 
was  one  of  the  majority,  and  he  resigned  January  31,  1870, 
and  soon  after  died.  Judge  Strong,  who  on  the  bench  of  the 
Supreme  Court  of  Pennsylvania  had  decided  in  favor  of  the 
constitutionality  of  the  legal  tender  act,  was  appointed  by 
President  Grant  to  fill  the  vacancy.  Apparently  the  Court 
would  now  be  equally  divided  upon  the  question.  Judge 
Bradley  was  then  appointed.  At  the  time  of  the  appoint- 
ment of  Judges  Strong  and  Bradley  there  were  two  cases 
upon  the  Supreme  Court  docket  involving  the  same  question. 
Ordinarily  the  decision  in  the  prior  case  would  afford  the  rule 
for  the  decision  of  these.  But  Judge  Bradley  had  as  coun- 
sel ably  contended  for  the  position  that  the  legal  tender  acts 
were  constitutional.  These  cases  were  argued,  and,  contrary 
to  the  former  decision,  the  law  was  declared  constitutional  by 
the  majority  of  the  Court. 

When  Andrew  Johnson  was  President  Congress  passed  an 


EXPOSED  TO  CONGRESSIONAL  ATTACK.  245 

act  over  his  veto  providing  that  oflBcers  appointed  by  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate, 
could  only  be  removed  by  the  like  advice  and  consent.  This 
"was  a  congressional  construction  of  the  power  of  removal  at 
variance  with  the  practical  construction  which  had  obtained 
from  the  time  of  Washington's  first  administration.  The 
President,  claiming  this  act  to  be  unconstitutional,  removed 
Mr.  Stanton,  or  went  through  the  form  of  removing  him,  from 
the  office  of  Secretary  of  War.  For  this  act  he  was  im- 
peached by  the  House  of  Representatives,  and  upon  trial 
escaped  conviction  by  a  single  vote.  Meantime  Mr.  Stanton 
continued  to  act  as  Secretary  of  War.  It  was  probable  that 
the  validity  of  his  acts  as  secretary  would  come  before  the 
Supreme  Court,  at  the  suit  of  parties  affected  by  them,  and 
thus  his  title  to  the  office  after  the  attempted  removal  become 
the  subject  of  decision  by  the  Court.  To  obviate  any  em- 
barrassment from  this  source,  Congress  passed  an  act  depriv- 
ing the  Court  of  jurisdiction. 

These  instances  will  suffice  to  show  that  under  the  consti- 
tutional power  of  Congress  over  the  organization  and  juris- 
diction of  the  Supreme  Court,  the  physical  power  exists  in 
Congress  to  reduce  the  Court  much  below  the  high  place  it 
has  occupied  so  long  in  the  government. 

It  is  possible,  under  the  pressure  of  popular  prejudice  or 
exasperation,  that  this  result  may  some  time  be  accomplished  ; 
and  regrets  have  been  expressed  that  the  organization  and 
jurisdiction  of  the  Court  are  exposed  to  congressional  attack 
and  diminution.  The  fact  is  reassuring,  that  a  century  of 
experience,  often  amidst  the  fiercest  partisan  strife,  and  bit- 
ter disappointment  and  denunciation,  has  only  increased  the 
public  confidence.  We  shall  hereafter  recount  some  of  the 
unsuccessful  attempts  to  deprive  it  of  its  most  useful  juris- 
diction. 

Fears  also  have  been  expressed  that  the  Court  may  by  con- 
struction so  amplify  its  jurisdiction  as  to  render  it  destructive 
of  the  reserved  rights  of  the  states.  Despite  all  that  has  been 
said  upon  this  subject,  the  truth  is  that  the  Court  is  really  the 
bulwark  and  defender  of  those  rights,  as  its  decisions  upon 
the  effect  of  the  recent  constitutional  amendments  attest.     It 

CM  1.  •' 


246 


CONSTITUTIONAL  HISTORY. 


will  be  presently  shown  that  the  Court  has  been  more  careful 
to  preserve  to  the  states  their  proper  power  to  make  and 
administer  their  own  laws,  than  to  give  to  these  amendments 
the  scope  desired  by  their  framers. 

The  business  of  the  Court  has  kept  pace  with  the  growth  of 
the  country.  In  1803  the  whole  number  of  cases  on  its  docket 
was  fifty-one.  In  1819  there  were  one  hundred  and  thirty- 
one.  In  1860  there  were  three  hundred  and  ten.  In  1870 
six  hundred  and  thirty-six.  In  1880,  twelve  hundred  and 
two.  In  1886,  thirteen  hundred  and  ninety-six.  The  cases 
are  accumulating  faster  than  the  Court  can  dispose  of  them. 
As  by  the  Constitution  there  can  be  but  one  Supreme  Court, 
the  remedy  would  seem  to  be  in  dividing  the  Court  into  two 
sections,  assigning  to  one  questions  under  the  national  Consti- 
tution and  laws,  and  to  the  other  questions  upon  state  laws 
only.  If  Congress  would  never  attempt  to  pass  the  line  of 
national  power,  and  if  the  states  would  never  attempt  to  reg- 
ulate commerce,  or  impair  the  obligation  of  contracts,  the 
work  of  the  Court  would  be  materially  reduced. 

The  power  of  the  Court,  if  necessary  for  the  decision  of  the 
case  before  it,  to  declare  a  law,  either  of  the  nation  or  of  the 
state  void,  because  unconstitutional,  was  practically  without 
precedent  in  any  judicial  history.  A  few  cases  had  arisen  in 
the  state  courts,  under  the  state  constitutions  adopted  since 
1775,  in  which  the  point  had  been  raised  and  sustained  that 
certain  laws  were  void  because  unconstitutional.  But  it  was 
a  long  time  before  the  existence  and  effect  of  this  new  power 
came  to  be  fully  understood.  It  was  perceived  that  the  Con- 
stitution of  the  United  States  prohibited  certain  legislation, 
both  to  the  states  and  to  the  United  States,  and  that  this 
prohibition  established  a  rule  for  the  guidance  of  the  several 
legislatures  in  respect  to  the  matters  prohibited  to  them 
respectively.  With  respect  to  the  states,  it  was  also  per- 
ceived that  the  Constitution  of  the  United  States,  and  the 
laws  of  the  United  States  made  in  pursuance  thereof,  were 
the  supreme  law  of  the  land,  and  that  the  judges  in  every 
state  were  bound  thereby,  notwithstanding  the  state  constitu- 
tion or  law  might  contain  provisions  to  the  contrary  (Art.  4). 
But  the  lawyers  and  judges  were  not  accustomed  to  the  meth- 


NOVELTY   OF   THE   JUDICIARY  POWER.  247 

ods  of  reasoning  which  should,  from  these  propositions,  deduce 
the  result  that  it  would  be  necessary  for  the  Court  to  declare 
the  state  law  void  when  in  conflict  with  the  federal  Constitu- 
tion. And  they  were  scarcely  ready  to  admit  the  proposition 
that  if  the  state  court  sustained  the  state  law  in  preference  to 
the  Constitution  of  the  United  States,  or  in  preference  to  the 
statutes  of  the  United  States  authorized  by  the  Constitution,  it 
was  competent  for  the  Supreme  Court  of  the  United  States  to 
reverse  the  judgment  of  the  state  court,  and  declare  the  state 
law  void  because  in  conflict  with  the  federal  Constitution. 

Still  less  were  they  prepared  to  admit  that  the  courts  could 
declare  a  law  of  the  United  States  void  because  not  within 
the  powers  given  by  the  Constitution  to  Congress.  Our  law- 
yers had  been  trained  under  the  unwritten  constitution  of 
England,  and  knew  that  the  power  of  Parliament  was  su- 
preme in  all  legislative  matters.  It  is  true  there  were  cer- 
tain fundamental  rights  and  privileges  of  the  subject,  guar- 
anteed by  ancient  charters  of  the  king  and  the  resolutions  of 
Parliament,  and  reiterated  by  repeated  judgments  of  the 
courts ;  upon  these  both  lawyers  and  people  reposed  with 
entire  confidence ;  but  the  power  was  not  in  terms  denied  to 
Parliament  to  invade  them.  Indeed  it  would  not  comport 
with  the  Constitution  of  that  kingdom  to  deny  any  law-mak- 
ing power  to  the  legislative  omnipotence  of  Parliament ;  and 
hence  no  court  could  set  aside  its  laws.  The  universal  senti- 
ment that  these  rights  and  privileges  were  the  birthright  of 
the  subject,  and  superior  to  the  touch  or  invasion  of  power, 
generally  sufficed  to  make  them  so.  Perhaps  no  written  con- 
stitution can  add  force  to  so  universal  a  sentiment.  The 
fundamental  principles  which  are  everywhere  respected,  and 
everywhere  self-operating,  have  little  need  of  courts  to  correct 
their  violation  by  Parliament.  It  is  not  improbable,  therefore, 
that  at  the  time  of  the  adoption  of  the  Constitution,  few  per- 
sons outside  of  the  lawyers  of  the  convention  had  foreseen  that 
there  would  be  more  need  for  the  courts  to  correct  violations 
of  the  fundamental  law  in  this  country  than  there  was  in 
England.  But  the  conditions  here  were  widely  different. 
Our  fathers  desired  to  secure  to  the  people  every  fundamental 
right  which  was  the  birthright  of  the  Englishman,  and  also 


248  CONSTITUTIONAL  HISTORY. 

those  which  the  American  sense  of  equality  and  government 
by  the  people  might  require.  There  were  many  states  with 
their  domestic  governments,  and  one  nation  with  a  national 
government  for  the  better  security  of  all.  It  was  necessary 
that  both  governments  should  be  adequate  to  their  purposes  ; 
that  national  powers  should  be  exercised  by  the  nation,  and 
domestic  powers  by  the  states,  and  that  neither  government 
should  clash  with  the  other.  The  people  who  created  both 
governments  reserved  to  themselves  certain  rights  and  priv- 
ileges which  neither  government  could  diminish,  but  which 
both  must  respect  and  protect.  Over  all  the  governments 
was  the  will  of  the  people  expressed  by  the  Constitution, 
and  all  the  governments  were  limited  by  this  will  thus  ex- 
pressed. 

The  judicial  department  was  created  to  declare  the  law  in 
actual  cases  of  contest  and  dispute.  What  law  should  be 
declared  ?  There  were  three  kinds  and  sources  of  law  :  First, 
the  law  or  will  of  the  people  as  embodied  in  the  Constitution ; 
Second,  the  law  which  Congress  might  enact ;  Third,  the  law 
which  the  states  might  enact.  But  the  Constitution  was  the 
paramount  law,  while  Congress  had  only  such  legislative 
power  as  the  Constitution  conferred.  The  states  had  such 
powers  of  domestic  legislation  as  were  reserved  to  them  by 
the  Constitution ;  that  is  to  say,  all  legislative  powers  con- 
ferred by  their  respective  state  constitutions,  not  denied  by 
the  federal  Constitution  or  in  conflict  with  it.  This  was  an 
artificial  arrangement,  suggested,  it  is  true,  by  necessity  and 
expediency,  but  very  unlike  the  slow  and  natural  growth  of 
the  English  system. 

It  was  a  compound  of  governments,  coordinate  and  yet  in- 
terdependent in  functions  ;  each  part  theoretically  defined  and 
placed,  but  liable  if  unskilfully  operated  to  clash  with  another. 

The  success  of  such  a  scheme  required  the  existence  of  a 
supreme  tribunal  to  ascertain  and  declare  the  actual  law  in 
cases  and  controversies  between  litigants,  since  it  was  probable 
that  one  government  would,  in  enacting  laws,  encroach  upon 
the  jurisdiction  of  the  other,  and  violate  the  fundamental  law 
of  the  Constitution.  Hence  the  Judiciary  Department  of  the 
United  States. 


COURTS  DECLARE,   NOT  MAKE,   LAWS.  249 

It  is  plain  enough  now  that  an  act  of  Congress,  or  of  the 
legislature  of  a  state,  which  it  has  no  power  or  authority  to 
enact,  is  no  law  at  all ;  and  it  is  equally  plain  that  there  must 
be  some  final  and  competent  tribunal  to  ascertain  and  decide 
when  an  apparent  law  is  no  law  ;  otherwise  doubt  and  conflict 
would  result  in  anarchy.  The  vesting  of  such  power  in  the 
Supreme  Court  of  the  United  States  does  not  constitute  that 
Court  the  superior  of  the  states  or  of  the  other  departments 
of  the  government  of  the  United  States.  The  Court  has  no 
creative  power ;  it  can  make  no  law.  The  Court  does  not  in 
case  of  an  alleged  conflict  between  the  laws  of  Congress,  or  of 
a  state  and  the  national  Constitution,  attempt  to  make  any 
new  law  or  rule,  but  only  to  find  out  and  declare  what  has 
always  been  the  law  and  rule.  It  does  not  impose  its  own 
will  as  the  law,  but  ascertains  and  declares  whether  the  will 
of  Congress,  or  of  the  state,  as  made  in  the  form  of  a  law,  is 
in  fact  rightly  so  made ;  or  whether  the  constitutional  limita- 
tions are  such  that  the  attempted  exercise  of  the  law-making 
power  cannot  be  exercised  within  the  limits  imposed. 

An  alleged  law  which  there  is  no  power  to  make  must  be 
void.  An  alleged  law  which  some  other  body  than  the  legisla- 
tive body  which  assumes  to  make  it  has  the  sole  power  to 
make  must  be  void.  Any  alleged  law  which  a  supreme  power 
has  prohibited  must  be  void.  An  unfounded  pretension  to 
power  cannot  be  rightful  power.  If  the  Constitution,  and  laws 
of  the  United  States  made  in  pursuance  thereof,  and  all  treaties 
made  under  the  authority  of  the  United  States,  are  the  su- 
preme law  of  the  land,  then  all  other  laws  to  the  contrary  can- 
not also  be  supreme ;  the  supreme  law  must  prevail ;  the  con- 
trary law  must  be  invalid.  If  the  judges  in  every  state  are 
bound  by  the  supreme  law,  "  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding,"  and  yet  do 
not  by  their  judgments  give  effect  to  the  supreme  law  that 
binds  them,  their  error  ought  to  be  corrected  upon  appeal. 
If  the  Supreme  Court  has  appellate  jurisdiction  of  "  all  cases 
in  law  and  equity  "  arising  under  the  supreme  law,  the  word 
all  covers  cases  of  the  kind  in  the  state  courts  as  well  as  in  the 
inferior  federal  courts. 

These  propositions  seem  simple  to  us,  possibly  because  we 


250  CONSTITUTIONAL  HISTORY. 

regard  them  in  the  light  of  acquired  and  established  methods 
of  reasoning  and  construction.  If  the  habit  of  reasoning  or 
the  authoritative  construction  had  been  the  other  way,  it  is 
not  improbable  that  we  should  regard  such  propositions  as  in- 
genious fallacies,  plausible  but  unsound. 

It  was  difficult  for  the  lawyers  and  judges  of  the  last  cen- 
tury to  yield  assent  to  the  doctrine  that  a  law  enacted  by  the 
legislative  department,  and  approved  by  the  executive  depart- 
ment, could,  because  in  conflict  with  the  Constitution,  be  de- 
clared void  by  the  judicial  department.  The  proposition  was 
a  shock  to  their  traditions  and  habits  of  thought.  It  is  true 
that  a  few  old  cases  could  be  found  in  the  English  reports,  in 
which,  as  in  Bonham's  case,^  it  is  said  :  — 

"  And  it  appears  in  our  books  that  in  many  cases  the  common  law 
will  control  acts  of  Parliament  and  sometimes  adjudge  them  to  be  ut- 
terly void ;  for  when  an  act  of  Parliament  is  against  common  right 
and  reason,  or  repugnant  or  impossible  to  be  performed,  the  common 
law  will  control  it  and  adjudge  such  act  to  be  void." 

But  the  cases  cited  in  illustration  of  this  dictum  show  that 
the  court  simply  used  common  sense  in  construing  an  act  of 
Parliament,  and  had  no  constitutional  authority  to  declare  it 
void ;  and  that  they  held  that  Parliament  could  not  be  con- 
sidered as  intending  by  the  letter  of  an  act  to  do  vain  and  im- 
possible things,  or  to  overthrow  by  implication  rules  of  law 
and  of  right  which  by  immemorial  usage  were  regarded  as 
of  common  right.  They  construed  the  act :  construction  may 
change  the  meaning  of  a  law,  but  cannot  destroy  its  validity. 
A  rule  of  construction  by  which  the  courts  ascertain  the  mean- 
ing of  a  statute  ought  not  to  be  confounded  with  the  constitu- 
tional power  to  declare  it  void.  Nor  did  the  lawyers  of  the 
last  century  suppose  that  there  was  any  analogy  between  the 
two  cases.  An  act  of  Parliament  could  not  be  challenged  for 
want  of  the  power  of  Parliament  to  make  it :  its  construction 
and  meaning  when  challenged  were  subjects  for  the  decisions 
of  the  court ;  but  the  fact  that  the  act  needed  interpretation 
implied  the  admission  that  the  act  was  valid.  The  colonists 
had  indeed  contended  that  the  Stamp  Act,  and  the  acts  of 
Parliament    imposing    internal    taxation   were  void   because 

1  8  Coke,  118. 


UNCONSTITUTIONAL  LAWS  VOID.  261 

against  Magna  Charta,  but  the  English  government,  following 
the  opinion  of  its  great  lawyers  and  judges,  scouted  the  propo- 
sition. 

The  constitutional  power  of  the  courts  to  decide  respecting 
the  validity  of  legislative  enactments  was  the  consequence  of 
constitutional  limitations  upon  the  legislative  power.  When, 
in  1776,  the  several  colonies  declared  themselves  free  and  in- 
dependent states,  and  severally  adopted  written  constitutions, 
they  placed  limitations  upon  governmental  power.  It  soon 
became  necessary  for  the  courts  to  compare  the  actual  exer- 
cise of  power  with  the  limited  right  to  exercise  it.  Before 
the  Constitutional  Convention  met  in  Philadelphia,  in  1787, 
several  cases  had  arisen  in  the  states  in  which  the  point  was 
presented  that  the  legislative  act  was  void,  because  in  excess 
of  legislative  power  as  given  by  the  Constitution,  or  in  oppo- 
sition to  the  Constitution  itself.^  The  system  of  reporting 
was  imperfect  in  those  days,  and  these  cases  probably  had 
not  been  generally  brought  to  the  attention  of  the  profession. 
Mr.  Gerry,  however,  in  the  Constitutional  Convention,  stated 
that  state  courts  had  already  declared  laws  to  be  void  because 
unconstitutional,  and  he  said  such  would  unquestionably  be 
the  duty  of  the  federal  judiciary.  This  view  was  generally 
concurred  in  by  the  delegates. 

Oliver  Ellsworth,  a  delegate  from  Connecticut,  afterwards 
a  member  of  the  convention  of  his  state  which  ratified  the 
Constitution,  later  a  member  of  Congress  and  author  of  the 
Judiciary  Act  of  1789,  and  still  later  Chief  Justice  of  the  Su- 
preme Court  of  the  United  States,  may  be  presumed  to  have 
been  familiar  with  the  views  of  the  members  of  the  federal 
convention,  and  with  the  object  and  scope  of  the  judiciary 
article  of  the  Constitution.  In  the  Connecticut  convention  he 
said :  — 

"  This  Constitution  defines  the  extent  of  the  powers  of  the  general 
government.  If  the  general  government  should  at  any  time  over- 
leap their  limits,  the  judicial  department  is  a  constitutional  check. 
If  the  United  States  go  beyond  their  powers,  if  they  make  a  law 
which  the  Constitution  does  not  authorize,  it  is  void ;  and  the  judi- 

1  A  collection  of  such  cases  can  be  found  in  an  interesting  article  in  the  nine- 
teenth volume  of  the  American  Law  Keview,  page  175. 


252 


CONSTITUTIONAL  HISTORY. 


cial  power,  the  national  judges,  who,  to  secure  their  impartiality,  are 
to  be  made  independent,  will  declare  it  void.  On  the  other  hand,  if 
the  states  go  beyond  their  limits,  if  they  make  a  law  which  is  an 
usurpation  upon  the  general  government,  the  law  is  void ;  and  up- 
right, independent  judges  will  declare  it  to  be  so." 

It  is  worthy  of  notice  that  Judge  Ellsworth  did  not  here 
say  that  the  national  judges  would  declare  the  unconstitu- 
tional state  law  to  be  void.  He  probably  limited  his  meaning 
to  "  the  judges  in  every  state,"  who,  by  the  sixth  article  of  the 
Constitution,  are  declared  to  be  bound  by  the  supreme  law  of 
the  Constitution.  Whether  the  national  judges  should  have 
power  upon  appeal  to  declare  void  a  state  law  in  violation  of 
the  Constitution  was  by  the  Constitution  itself  made  to  de- 
pend upon  the  act  to  be  passed  by  Congress,  regulating  the 
appellate  jurisdiction  of  the  Supreme  Court  and  prescribing 
the  exceptions  to  the  extent  of  its  jurisdiction.^ 

Mr.  Hamilton,  in  the  seventy-eighth  number  of  "  The  Fed- 
eralist," is  explicit  in  the  assumption  of  the  superiority  of  the 
Constitution  over  any  hostile  legislative  act.     He  says :  — 

"  There  is  no  position  which  depends  on  clearer  principles  than 
that  every  act  of  delegated  authority  contrary  to  the  tenor  of  the 
commission  under  which  it  is  exercised  is  void.  No  legislative  act, 
therefore,  contrary  to  the  Constitution  can  be  valid.  To  deny  this 
would  be  to  affirm  that  the  deputy  is  greater  than  his  principal ;  that 
the  servant  is  above  his  master  ;  that  the  representatives  of  the  peo- 
ple are  superior  to  the  people  themselves  ;  that  men  acting  by  virtue 
of  powers  may  do  not  only  what  their  powers  do  not  authorize,  but 
what  they  forbid.  .  .  .  The  interpretation  of  the  laws  is  the  proper 
and  peculiar  province  of  the  courts.  A  constitution  is  in  fact,  and 
must  be  regarded  by  the  judges  as,  a  fundamental  law.  It  must, 
therefore,  belong  to  them  to  ascertain  its  meaning,  as  well  as  the 
meaning  of  any  particular  act  proceeding  from  the  legislative  body. 
If  there  should  happen  to  be  an  irreconcilable  variance  between  the 
two,  that  which  has  the  superior  obligation  and  validity  ought  to  be 
preferred.  In  other  words,  the  Constitution  ought  to  be  preferred 
to  the  statute ;  the  intention  of  the  people  to  the  intention  of  their 
agents." 

Mr.  Hamilton  then  proceeds  to  show  that  under  a  limited 

1  Art.  3.  sec.  2,  sub.  2. 


THE  COURT  OFFENDS  THE  STATES.  253 

constitution  the  courts  may  properly  be  made  the  bulwarks 
of  the  Constitution  against  legislative  encroachment. 

Still  this  preliminary  discussion  but  vaguely  touched  the 
constitutional  power  of  the  federal  judiciary  to  declare  a  state 
law  void  because  unconstitutional.  That  the  courts  ought  to 
declare  an  unconstitutional  law  void  was  the  proposition  of 
the  advanced  thinkers  and  writers.  But  what  courts  ?  This 
question  Judge  Ellsworth,  in  his  draft  of  the  judiciary  act 
passed  by  the  first  Congress  in  1789,  attempted  to  settle. 
Respecting  the  decrees  of  state  courts,  the  act  provided  :  — 

"  A  final  judgment  or  decree  in  any  suit  in  the  highest  court  of  a 
state  in  which  a  decision  in  the  suit  could  be  had,  where  is  drawn  in 
question  the  validity  of  a  treaty,  or  statute  of,  or  an  authority  exer- 
cised under,  the  United  States,  and  the  decision  is  against  their  valid- 
ity ;  or  where  is  drawn  in  question  the  validity  of  a  statute  of,  or  an 
authority  exercised  under,  any  state,  on  the  ground  of  their  being  re- 
pugnant to  the  Constitution,  treaties,  or  laws  of  the  United  States, 
and  the  decision  is  in  favor  of  their  validity;  or  where  any  title, 
right,  privilege,  or  immunity  is  claimed  under  the  Constitution,  or 
any  treaty  or  statute  of,  or  commission  held,  or  authority  exercised 
under,  the  United  States,  and  the  decision  is  against  the  title,  right, 
privilege,  or  immunity  specially  set  up  or  claimed  by  either  party, 
under  such  Constitution,  treaty,  statute,  commission,  or  authority, 
may  be  reexamined,  and  reversed  or  affirmed,  in  the  Supreme  Court 
upon  a  writ  of  error." 

The  Supreme  Court  moved  slowly,  cautiously,  and  even 
hesitatingly,  in  the  assertion  of  its  novel  powers.  But  cau- 
tious as  it  was,  it  soon  brought  upon  itself  the  wrath  of  Con- 
gress and  the  people.  In  1793,  in  Chisholm  v.  The  State  of 
Georgia,^  the  Court  decided  that  a  state  could  be  sued  by  an 
individual  citizen  of  another  state.  This  decision  was  based 
upon  the  constitutional  provision  that  the  judicial  power  shall 
extend  to  controversies  "  between  a  state  and  citizens  of 
another  state."  This  decision  was  contrary  to  the  opinion 
which  generally  prevailed.  Mr.  Hamilton,  in  "  The  Federal- 
ist," had  said  that  the  constitutional  provision  only  applied 
to  actions  to  be  brought  by  a  state,  and  not  against  it.  State 
sovereignty  took  instant  and  alarmed  offence,  and  demanded 

1  2  Dallas,  419. 

UNIVERSITY 

C4/  icnowlA, 


254 


CONSTITUTIONAL  HISTORY. 


an  amendment  to  the  Constitution.  Many  of  the  states  were 
heavily  in  debt,  and  were  exposed  by  this  decision  to  like 
suits.  The  State  of  Massachusetts  was  sued.  Governor 
Hancock,  as  soon  as  the  writ  was  served,  convened  the  legis- 
lature, and  that  body  resolved  to  take  no  notice  of  the  suit. 

The  legislature  of  the  State  of  Georgia  passed  an  act  sub- 
jecting to  death,  "  without  benefit  of  clergy,"  any  marshal  of 
the  United  States,  or  other  person,  who  should  presume  to 
serve  any  process  against  that  state  at  the  suit  of  an  indi- 
vidual. 

The  Eleventh  Amendment  to  the  Constitution  followed. 
This  amendment  is  peculiar,  and  the  Court  might  well  con- 
sider its  phraseology  offensive.  It  does  not  undertake  to  alter 
any  provision  of  the  Constitution,  but  declares  that  — 

"  The  judicial  power  shall  not  he  construed  to  extend  to  any  suit 
in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  state,  or  by  citizens  ^'or  subjects  of  any 
foreign  state." 

The  amendment  reversed  the  decision  and  doctrine  of  the 
Court.  It  gave  and  was  intended  to  give  the  Court  solemn 
warning  that  it  had  assaulted  the  sovereignty  of  a  state,  and 
had  made  a  grave  mistake.  It  might  well  be  considered  as 
an  admonition  to  repress  any  tendency  to  enlarge  the  scope 
or  meaning  of  the  Constitution  by  liberality  of  interpretation. 
It  affirmed  the  non-suability  of  a  state,  at  least  without  its 
own  consent. 

This  immunity  of  a  state  from  suit  by  an  individual  pro- 
ceeds upon  the  theory  that  a  sovereign  state  is  itself  the  foun- 
tain of  justice,  and  that  it  will,  from  its  own  sense  of  honor, 
make  ample  provision  for  the  examination  and  satisfaction  of 
any  claim  upon  its  justice.  To  compel  it  to  appear  against 
its  will  in  the  court  of  another  jurisdiction  is  an  imputation 
of  inferiority,  and  of  a  lack  of  justice  and  honor.  This  theory 
is  a  pleasant  one,  and  is  generally  true.  But  many  states 
have  not  hesitated  to  repudiate  their  own  bonds.  The  losses 
which  have  been  visited  upon  delayed,  scaled,  and  plundered 
investors  in  state  bonds  probably  exceed  $100,000,000.  Nu- 
merous attempts  have  been  made  to  correct  this  gross  in  jus- 


STATE  REPUDIATION   OF  DEBTS.  255 

tice.  The  Constitution  permits  one  state  to  sue  another  in 
the  Supreme  Court  of  the  United  States.  A  few  suits  of  the 
kind  have  been  brought,  mainly  respecting  conflicting  claims 
to  boundary  lines.  The  provision  is  an  admirable  one.  While 
it  asserts  the  supremacy  of  the  federal  jurisdiction,  it  admits 
the  equality  of  the  suitors.  The  holders  of  state  bonds  have 
obtained  permission  of  their  state  to  assign  their  bonds  to  it, 
and  then  their  state  has  sued  the  defaulting  state.  But  these 
suits  have  failed  ;  the  Supreme  Court  properly  holding  that 
such  a  suit  is  an  indirect  attempt  to  defeat  the  constitutional 
immunity  of  a  state  from  individual  suit.  Suits  against  state 
officers  have  failed  for  the  like  reason. 

The  state  cannot,  by  repudiating  its  contract,  exempt  its 
officers  from  suit,  if  they,  in  reliance  upon  such  repudiation, 
seize  the  property  of  an  individual  to  satisfy  a  tax  or  demand 
which  he  has  satisfied  according  to  the  terms  of  the  contract. 
The  constitutional  immunity  from  suit  is  a  shield  but  not  a 
sword. 

Thus  the  law  of  the  State  of  Virginia  authorized  its  bond- 
holders to  pay  their  taxes  in  the  coupons  of  state  bonds.  The 
state  subsequently  changed  the  law  so  as  to  make  such  pay- 
ment subject  to  new  and  restrictive  conditions.  A  tax-payer 
tendered  his  coupons  for  payment  of  his  tax  in  the  manner 
provided  in  the  original  law.  The  collector,  refusing  to  accept 
them,  levied  upon  his  goods.  The  Supreme  Court  held  that 
he  was  a  trespasser,  that  the  state  could  not  impair  the  ob- 
ligation of  its  contract,  that  the  collector  had  no  unsatisfied 
tax  to  collect,  that  the  fact  that  the  state  could  not  be  sued 
did  not  exempt  its  wrong-doing  officer  from  suit  to  repair  the 
wrong  he  had  done.^ 

Several  suits  were  brought  against  officers  of  the  state  to 
prevent  them  from  acting  with  respect  to  these  coupons  in 
the  manner  prescribed  by  the  state  law.  These  suits  all 
failed,  for  the  reason  that  they  were  indirect  attempts  to  sue 
the  state.  The  citizen  was  told  that  his  constitutional  right 
to  the  benefit  of  his  contract  with  the  state  was  his  shield 
against  aggression  based  upon  the  repudiation  of  that  con- 
tract by  the  state,  but  the  Constitution  forbade  him  to  use  it 
1  Poindexter  v.  Greenhow,  114  U.  S.  Rep.  270. 


256  CONSTITUTIONAL  HISTORY. 

as  a  sword  to  coerce  the  state.  The  distinction  seems  to  be  a 
narrow  one,  and  to  result  in  injustice.  It  perhaps  would  be 
wise  to  repeal  the  Eleventh  Amendment,  and  thus  remove  the 
temptation  to  extravagance  and  dishonesty  which  the  power 
to  repudiate  presents. 


LECTURE  XL 

THE  INFLUENCE  OF    THE     SUPREME    COURT.  —  CONTINUED. 

The  power  of  the  Supreme  Court  to  declare  an  act  of  Con- 
gress void  because  not  authorized  by  the  Constitution,  or  in 
conflict  with  it,  was  first  presented  in  1T92,  under  the  act  of 
Congress  for  the  relief  of  pensioners,  already  referred  to ;  but 
no  decision  was  made.  The  question  might  be  said  to  be 
settled  by  the  decision  that  Congress  could  not  assign  non- 
judicial duties  to  judicial  officers.^  It  was  again  discussed  in 
1796.2  Congress  passed  an  act  imposing  a  tax  upon  carriages. 
The  Constitution  ^  provides  that  "  direct  taxes  shall  be  appor- 
tioned among  the  several  states  according  to  their  respective 
numbers."  There  were  more  carriages  in  that  day  in  Vir- 
ginia, in  proportion  to  the  population,  than  in  any  other  state, 
and  hence  if  the  tax  was  a  direct  one,  Virginia  would  pay 
more  than  her  share.  The  Court  held  that  it  was  not  a  direct 
tax,  but  rather  an  impost  or  excise,  which  the  Constitution 
directs  shall  be  uniform  throughout  the  United  States.  The 
law  was  thus  sustained.  Mr.  Justice  Samuel  Chase,  in  the 
course  of  his  opinion,  makes  the  following  remarks :  "  As  I 
do  not  think  the  tax  upon  carriages  is  a  direct  tax,  it  is  un- 
necessary for  me  at  this  time  to  determine  whether  this  Court 
constitutionally  possesses  the  power  to  declare  an  act  of  Con- 
gress void,  on  the  ground  of  its  being  made  contrary  to  and 
in  violation  of  the  Constitution  ;  but  if  the  Court  have  such 
power,  I  am  free  to  declare  that  I  will  never  exercise  it,  but 
in  a  very  clear  case." 

But  at  the  same  term  the  Court,  in  the  case  of  Ware  v.  Hyl- 
ton,*  decided  that  a  statute  of  the  State  of  Virginia,  enacted 
before  the  treaty  of  peace  between  the  United  States  and 

1  Hayburn's  case,  2  Dalian,  409.        ^  Hylton  v.  United  States,  3  Dallas,  171. 
8  Art.  1,  sec.  2.  *  3  Dallas,  199. 

17 


258  CONSTITUTIONAL  HISTORY. 

Great  Britain,  was  void,  because  the  statute  was  contrary  to 
the  treaty,  and  the  Constitution  made  the  treaty  the  supreme 
law.     The  treaty  therefore  overruled  the  statute. 

In  the  case  of  Calder  v,  Bull,^  in  1798,  the  point  to  be  de- 
cided was  whether  a  statute  of  Connecticut  was  not  an  ex  post 
facto  law,  and  therefore  void  as  forbidden  by  the  federal  Con- 
stitution. The  Court  held  it  was  not  an  ex  post  facto  law,  and 
thus  escaped  holding  it  void.  Mr.  Justice  Chase,  in  giving  the 
opinion  of  the  Court,  used  these  words :  "  All  the  powers  dele- 
gated by  the  people  of  the  United  States  to  the  federal  gov- 
ernment are  defined,  and  no  constructive  powers  can  be  exer- 
cised by  it."  Justice  Chase  then  was,  or  afterwards  became, 
an  ardent  and  pronounced  champion  of  the  supreme  powers 
of  the  general  government.  His  arbitrary  conduct  and  par- 
tisan speeches  at  the  circuit  courts  in  which  he  presided,  and 
his  rulings  upon  the  trial  of  offenders  against  the  odious  sedi- 
tion laws,  so  exasperated  the  Anti-Federalists  that  they  pro- 
cured his  impeachment  by  Congress  in  the  administration  of 
President  Jefferson.  We  may  believe  that  his  temperament 
was  ill-suited  for  judicial  fairness,  but  in  ability  he  was  more 
than  a  mntch  for  his  accusers,  and  he  easily  escaped  convic- 
tion when  brought  to  trial.  His  dictum  that  no  construc- 
tive powers  can  be  exercised  by  the  federal  government  is  in- 
teresting evidence  of  contemporaneous  opinion.  It  was  soon 
repudiated  by  the  Court,  but  remained  the  cardinal  rule  of 
constitutional  construction  of  the  Jeffersonian  or  democratic 
party,  though  not  always  adhered  to  in  practice. 

In  the  case  of  Cooper  v.  Telfair,^  decided  in  1800,  Judge 
Chase  said :  "  It  is  indeed  a  general  opinion,  it  is  expressly 
admitted  by  all  this  bar,  and  some  of  the  judges  have  individ- 
ually in  the  circuits  decided,  that  the  Supreme  Court  can  de- 
clare an  act  of  Congress  unconstitutional  and  therefore  in- 
valid, but  there  is  no  adjudication  of  the  Supreme  Court  itself 
upon  the  point.  Although  it  is  alleged  that  all  acts  of  the 
legislature  (of  a  state)  in  direct  opposition  to  the  prohibitions 
of  the  Constitution  would  be  void,  yet  it  still  remains  a  ques- 
tion where  the  power  resides  to  declare  it  void." 

It  was  not  until  1803,  fourteen  years  after  the  Constitution 
1  3  Dallas  387.  ^  4  Dallas,  14. 


I 


UNCONSTITUTIONAL  LAWS  DECLARED  VOID.       259 

went  into  operation,  that  the  Supreme  Court  explicitly  an- 
nounced the  doctrine  that  a  law  of  Congress  repugnant  to  the 
Constitution  is  void.  It  was  the  case  of  Marbury  v,  Madison,' 
before  referred  to.  The  case  was  apparently  an  insignificant 
one,  but  the  doctrines  enunciated  are  so  important  and  so  lu- 
cidly expressed,  and  have  been  ever  since  so  controlling  as 
authority,  that  it  may  without  impropriety  be  somewhat  fully 
stated. 

President  Adams,  just  before  the  expiration  of  his  term  of 
office,  had  appointed  Mr.  Marbury  justice  of  the  peace  for 
the  District  of  Columbia,  to  hold  office  for  five  years.  Jus- 
tice Marbury's  commission  was  duly  made  out  during  Mr. 
Adams's  incumbency,  but  was  not  delivered,  and  it  passed, 
upon  President  Adams's  retirement,  into  the  hands  of  Mr. 
Madison,  President  Jefferson's  new  Secretary  of  State.  The 
reported  case  does  not  so  recite,  but  history  informs  us,  that 
there  was  much  gossip  in  those  days  about  the  "  midnight 
judges  "  whom  President  Adams  appointed  the  last  night  of 
his  term.  If  we  credit  this  gossip,  we  may  suppose  there  was 
not  time  to  deliver  this  commission  to  Mr.  Marbury  after  it 
was  signed,  and  before  the  clock  struck  twelve,  at  midnight, 
March  3,  1801.  Mr.  Marshall  was  President  Adams's  Sec- 
retary of  State,  and  continued  for  several  weeks  after  his  ele- 
vation to  the  chief  justiceship  to  discharge  the  duties  of  the 
former  office.  It  is  not  improbable  that  he  delivered  this 
commission,  as  a  part  of  the  unadministered  assets  of  the  of- 
fice, to  Mr.  Madison.  Mr.  Adams  was  a  Federalist,  and  Mr. 
Jefferson  a  Republican,  as  party  names  then  went.  At  any 
rate,  Mr.  Madison  refused  to  deliver  to  Mr.  Marbury  his  com- 
mission, and  Mr.  Marbury  made  application  to  the  Supreme 
Court  for  a  mandamus  to  compel  Secretary  Madison  to  de- 
liver it  to  him.  The  Court  held  that  Mr.  Marbury  was  en- 
titled to  his  commission  ;  that  Mr.  Madison  had  no  right  to 
withhold  it ;  that  a  mandamus  was  a  proper  proceeding  to  com- 
pel its  delivery ;  but  after  holding  so  much  in  favor  of  Mr. 
Marbury  and  against  the  administration,  it  then  held  that 
the  Supreme  Court  had  no  power  to  issue  the  mandamus,  and 
therefore  could  not  give  Mr.  Marbury  any  aid.  One  would 
suppose  that  if  the  Court  had  no  power  to  aid  the  claimant, 

1  1  Cranch,  137. 


260  CONSTITUTIONAL  HISTORY. 

its  decision  that  his  claim  to  the  commission  was  a  valid  one 
would  not  be  authoritative.  Be  that  as  it  may,  the  great 
point  decided,  and  which  the  Court  did  have  the  right  to  de- 
cide, was  that  the  Court  could  not  grant  the  mandamus,  be- 
cause the  act  of  Congress  conferring  the  power  upon  the  Court 
to  issue  it  was  not  itself  authorized  by  the  Constitution,  but 
was  repugnant  to  it.  The  judiciary  act  authorized  the  Su- 
preme Court  to  issue  writs  of  mandamus  "  to  any  person  hold- 
ing ofl&ce  under  authority  of  the  United  States."  Secretary 
Madison  was  such  a  person.  But  the  act  of  Congress  was 
held  to  be  unconstitutional,  because  the  grant  of  the  writ  was 
the  exercise  of  original  jurisdiction.  The  Constitution  de- 
fined the  original  jurisdiction  of  the  Court,  mentioned  the 
cases  in  which  it  could  be  exercised,  and  provided  that  in  all 
other  cases  the  Court  should  have  appellate  jurisdiction  ;  and 
that  as  the  Constitution  enumerated  the  cases  in  which  the 
Court  had  original  jurisdiction,  the  act  of  Congress  confer- 
ring it  in  other  cases  was  repugnant  to  the  Constitution,  and 
therefore  void.  Chief  Justice  Marshall  announced  the  judg- 
ment of  the  Court  upon  this  branch  of  the  case,  in  an  opinion 
remarkable  for  its  clear  and  convincing  exposition  of  the  prin- 
ciples which  rendered  the  Constitution  the  paramount  law, 
and  the  absolute  and  self-executing  nullifier  of  every  attempted 
law  repugnant  to  it.  This  opinion  has  since  been,  and  still 
is,  held  in  the  very  highest  esteem,  and  may  be  said  to  be 
nearly  equivalent  to  a  part  of  the  Constitution  itself. 

In  some  of  the  states,  the  decisions  of  their  courts  declaring 
a  state  law  unconstitutional  provoked  the  resentment  of  the 
people.  A  case  arose  in  Rhode  Island,  in  1786.  The  state 
had  chartered  a  bank  and  declared  its  bills  legal  tender,  and 
imposed  a  heavy  penalty  to  be  inflicted  by  the  judge  without 
a  jury  trial,  upon  any  person  who  should  refuse  to  receive 
them.  A  butcher  refused  to  take  them  in  payment  for  his 
meat.  He  was  prosecuted  for  the  penalty,  and  the  judges  held 
the  law  unconstitutional,  because  the  charter  secured  a  jury 
trial  which  the  law  forbade.  The  judges  were  impeached 
though  not  convicted  ;  but  the  legislature  refused  to  elect 
them  again,  and   thus  paper  money  won  the  victory.^     In 

1  Cooley's  Const.  Lim.  194. 


THE  YAZOO   FRAUDS.  261 

1808,  in  Ohio,  the  judges  declared  a  state  law  unconstitu- 
tional, and  were  impeached,  but  not  convicted.^  In  1822  an 
attempt  was  made  in  Kentucky,  without  success,  to  remove 
a  judge  who  had  declared  a  law  unconstitutional.^  The  peo- 
ple seemed  to  think  that  a  judge  who  declared  a  law  uncon- 
stitutional unjustifiably  rated  his  power  above  that  of  the 
legislative  and  executive  departments.  But  the  truth  is,  the 
judge  simply  declares  what  the  law  is,  and  if  the  law  of  the 
legislature  and  the  Constitution  are  in  conflict  or  repugnant 
to  each  other,  he  must  declare  against  the  law  of  the  legis- 
lature. 

To  return  to  the  Supreme  Court  of  the  United  States  :  in 

1809,  the  Court  decided  that  no  state  could  pass  a  law  to  im- 
pair the  effect  of  a  judgment  which  a  court  of  the  United 
States  had  rendered.^  If  the  contrary  doctrine  had  prevailed, 
an  important  step  would  have  been  taken  towards  stripping 
the  nation  of  any  effective  power. 

The  State  of  Georgia  passed  a  law  in  1795,  under  which 
certain  lands  belonging  to  the  state  were  sold  to  individuals. 
The  passage  of  this  law  was  procured  by  bribery  and  fraud, 
and  a  subsequent  legislature  repealed  it  and  declared  the  con- 
veyances given  under  it  void.  The  Court  held  that  the  state, 
having,  under  the  first  law,  made  a  contract  with  the  pur- 
chaser of  the  land,  could  not,  by  a  subsequent  law,  destroy  or 
impair  that  contract.*  This  was  the  case  of  the  *'  Yazoo 
frauds."  These  frauds  were  famous  for  fifty  years,  and  made 
and  ruined  the  political  fortunes  of  many  a  Georgia  politician. 
The  case  in  question  afforded  a  striking  illustration  of  the 
power  of  the  nation,  under  the  Constitution,  —  not,  indeed, 
to  compel  a  state  to  perform  its  contract,  but  to  prevent  it 
from  rescinding  and  nullifying  it,  after  it  had  been  per- 
formed, to  the  prejudice  of  the  persons  who  had  dealt  with 
the  state.  Thus,  the  injustice  which  the  federal  Constitution 
forbids  a  state  to  commit,  the  Supreme  Court  is  competent  to 
remedy. 

The  fact  that  the  Constitution  conferred  the  power  and 
made  it  the  duty  of  the  Court,  when  the  case  came  before  it, 

1  Cooley's  Const.  Lira.  194.  2  23  Niles's  Reg.  Sup.  153. 

*  United  States  v.  Peters,  5  Cranch,  115.         *  Fletcher  v.  Peck,  6  Cranch,  87. 


262  CONSTITUTIONAL  HISTORY. 

to  declare  a  law,  either  state  or  national,  void,  when  in  con- 
flict with  the  federal  Constitution  gradually  became  familiar 
to  the  legal  profession  and  to  the  people. 
.  While  this  proposition  met  with  general  acceptance,  the 
claim  that  the  Supreme  Court  could,  in  the  exercise  of  its  ap- 
pellate jurisdiction,  review  and  reverse  the  decision  of  a  state 
court,  in  cases  in  which  the  latter  court  held  the  state  law 
not  to  be  in  conflict  with  the  federal  Constitution,  or  held  the 
federal  law  or  authority  invalid,  was  vigorously  challenged. 
The  Supreme  Court  did  exercise  this  power  in  a  few  instances, 
but  when  its  full  scope  and  consequences  came  to  be  perceived, 
the  exercise  of  the  jurisdiction  was  strenuously  and  bitterly 
resisted,  not  only  at  the  bar,  but  by  several  of  the  state  legis- 
latures. The  supremacy  of  the  Constitution,  and  of  the  laws 
and  treaties  of  the  United  States  made  in  pursuance  thereof, 
was  admitted ;  but  the  contention  was  that  the  Constitution 
of  the  United  States  did  not  give  to  the  Supreme  Court  ap- 
pellate jurisdiction,  except  with  respect  to  the  cases  which 
were  decided  in  the  "  inferior  courts  "  of  the  United  States, 
and  therefore  did  not  extend  to  cases  decided  in  the  state 
courts. 

The  constitutionality  of  the  section  of  the  judiciary  act,  al- 
ready cited,  which  provides  that  in  the  cases  therein  specified 
the  final  judgment  of  the  state  court  might  be  reexamined, 
reversed,  or  affirmed  in  the  Supreme  Court  of  the  United 
States,  was  denied.  Of  course,  whatever  cases  arise  in  the 
state  courts  must  be  decided  there.  If  a  party  rests  his  claim 
or  defence  upon  the  laws,  treaties,  or  authority  of  the  United 
States,  the  state  courts  must  decide  whether  his  claim  or  de- 
fence is  good  or  bad.  If  the  claim  or  defence  is  good  under 
the  state  law,  but  the  opposing  party  alleges  that  the  state 
law  is  void,  because  in  conflict  with  the  Constitution  of  the 
United  States,  the  state  court  must  decide  that  question.  A 
plausible  argument  could  be,  and  was,  made  that  the  appel- 
late jurisdiction  of  the  Supreme  Court  of  the  United  States 
is  limited  by  the  Constitution  to  the  judgments  of  the  inferior 
courts  of  the  United  States. 

The  Constitution  provides  for  one  Supreme  Court,  and  for 
inferior  courts  of   the  United  States.     It  then  specifies  the 


EXTENT  OF  APPELLATE  JURISDICTION.  263 

cases  to  which  the  judicial  power  of  the  United  States  shall 
extend,  and  makes  the  exercise  of  that  power  consist  of  both 
original  and  appellate  jurisdiction  :  with  respect  to  the  Su- 
preme Court  it  makes  its  original  jurisdiction  very  small  and 
its  appellate  jurisdiction  very  full.  The  inference  was  drawn 
that  the  inferior  courts  possess  the  original  jurisdiction  and 
the  Supreme  Court  the  appellate.  That  is,  the  inferior  courts 
should  hear  and  decide  in  the  first  instance  the  cases  to  which 
the  judicial  power  of  the  United  States  extends,  and  an  ap- 
peal would  then  lie  from  the  decision  of  the  inferior  courts  of 
the  United  States  to  the  Supreme  Court.  This  construction, 
it  was  contended,  made  the  federal  system  complete  and  har- 
monious, and  satisfied  the  terms  of  the  Constitution.  The 
words  of  the  Constitution,  providing  that  "  the  judicial  power 
of  the  United  States  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution,"  must  mean  only  all 
those  cases  to  which  the  judicial  power  of  the  United  States 
extends,  which  the  inferior  courts  of  the  United  States  decide ; 
that  if  there  had  been  any  intention  to  extend  the  appellate 
jurisdiction  to  cases  decided  by  the  state  courts,  the  Consti- 
tution would  have  contained  an  explicit  declaration  to  that 
effect ;  but  it  simply  bound  the  state  judges  to  obey  the  Con- 
stitution as  the  supreme  law.  The  intention  to  prostrate  the 
state  courts  at  the  feet  of  the  national  courts  could  not  be 
presumed ;  the  obedience  of  the  state  judges  was  presumed. 
The  position  was  further  supported  by  argument  derived  from 
the  Tenth  Amendment,  that  "  The  powers  not  delegated  to 
the  United  States,  nor  prohibited  by  it  to  the  states,  are  re- 
served to  the  states,  respectively,  or  to  the  people."  The 
Constitution  also  requires  "  that  full  faith  and  credit  shall  be 
given  in  every  state  to  the  judicial  proceedings  of  every  other 
state,  and  Congress  is  required  to  prescribe  by  general  laws 
the  manner  of  proof  and  its  effect."  ^  The  nature  and  purpose 
of  the  Constitution  were  considered :  the  United  States,  it 
was  contended,  is  the  servant  or  agent  of  the  states  in  na- 
tional concerns,  not  their  master, — certainly  not  more  than 
their  equal.  The  state  is  a  sovereign,  and  as  such  is  equal  in 
right  with  every  power  with  which  it  has  entered  into  a  com- 

1  Art.  4,  sec.  1. 


264  CONSTITUTIONAL  HISTORY. 

pact,  or  assumed  any  obligation,  to  judge  concerning  its  full 
performance  of  its  obligations,  or  the  measure  of  its  rights 
under  the  compact. 

But  the  Supreme  Court  did  not  regard  the  argument  sound. 
It  said,  if  it  limited  the  meaning  of  the  clause  "  all  cases 
arising  under  the  Constitution  "  to  all  such  cases  in  the  fed- 
eral courts,  and  extended  it  to  no  other,  its  jurisdiction  would 
not  extend  to  all  cases,  but  only  to  some  of  them.  If  every 
state  court  could  give  the  final  unappealable  decision  upon 
tbe  constitutional  questions  coming  before  it,  then  the  Consti- 
tution would  have  different  force  and  meaning  in  the  several 
states,  and  the  equality  of  constitutional  rights  would  be  de- 
stroyed,—  an  evil  which  this  provision  of  the  Constitution; 
could  prevent,  and  must  therefore  have  been  devised  to  pre- 
vent. 

This  decision  was  made  in  a  case  brought  before  the  Court 
upon  appeal  from  the  Court  of  Appeals  of  Virginia.^  The 
state  court  at  first  refused  to  respect  or  enforce  the  decree  of 
the  Supreme  Court,  but  subsequently  receded.  The  objec- 
tion was  again  urged  in  the  case  of  Cohens  v.  The  State  of 
Virginia.2  In  that  case  Cohens  was  convicted  upon  an  in- 
dictment for  selling  lottery  tickets.  His  answer  was  that  he 
sold  in  Virginia  lottery  tickets  authorized  by  Congress  for  a 
lottery  to  be  drawn  in  the  city  of  Washington.  Cohens 
appealed  to  the  Supreme  Court  of  the  United  States.  The 
State  of  Virginia  urged  that  the  Court  could  not  review  the 
decision,  because  the  state  was  a  defendant  and  could  not  be 
sued.  The  Court  held  that  the  appeal  was  not  a  suit  against 
the  state,  but  a  proceeding  bringing  the  record  of  the  state 
court  into  the  Supreme  Court  in  a  case  arising  under  the  laws 
of  the  United  States ;  that  the  Constitution  did  confer  appel- 
late jurisdiction  upon  the  Supreme  Court,  since  its  appellate 
jurisdiction  extends  to  all  cases  arising  under  such  laws,  no 
matter  in  what  court  decided. 

The  State  of  Pennsylvania  in  1808  attempted  to  resist,  by 
an  act  of  its  legislature,  the  execution  of  a  judgment  of  the 
District  Court  of  the  United  States,  and  when,  notwithstand- 
ing this  act,  the  Supreme  Court  of   the  United  States   by 

1  Martin  v.  Hunter's  Lessee,  1  Wheaton,  304  .  ^  6  Wheaton,  264. 


STATE   RESISTANCE   TO  FEDERAL  DECREES.        265 

mandamus  directed  the  District  Court  to  execute  its  decree, 
the  marshal  of  that  court,  who  attempted  to  execute  it,  was 
for  a  time  resisted  by  the  armed  militia  of  Pennsylvania, 
acting  under  the  authority  of  the  state.  The  state,  after 
much  irritating  controversy,  finally  receded  from  its  opposing 
attitude,  and  allowed  the  judgment  of  the  court  of  the  United 
States  to  be  executed.^  The  case  arose  as  follows :  In  the 
Revolutionary  War  Gideon  Olmstead  and  others,  citizens  of 
Connecticut,  were  made  prisoners  by  the  British  and  put  to 
service  on  the  British  sloop  Active.  On  a  voyage  from 
Jamaica  to  New  York  the  prisoners  seized  the  vessel,  confined 
the  captain,  and  sailed  for  Egg  Harbor.  In  sight  of  that  port 
the  Active  was  captured  by  an  armed  cruiser  belonging  to  the 
State  of  Pennsylvania,  brought  into  port,  and  was  condemned 
by  the  admiralty  court  as  a  prize  of  the  Pennsylvania  cap- 
tors. Olmstead  and  his  associates  claimed  the  prize  as  theirs, 
and  they  appealed  to  the  Court  of  Appeals  established  for  the 
purpose  by  the  Congress  of  the  confederacy,  and  this  court 
awarded  the  prize  to  Olmstead  and  his  associates,  reversing 
the  admiralty  decree,  and  directing  the  marshal  to  sell  the  ves- 
sel and  cargo  and  pay  the  proceeds  to  Olmstead  and  his  asso- 
ciates. But  the  marshal  under  the  direction  of  the  admiralty 
court,  although  he  sold  the  vessel  and  cargo,  refused  to  pay 
the  proceeds  to  Olmstead,  but,  in  contempt  of  the  order  of  the 
court  of  the  confederacy,  paid  the  proceeds  to  Judge  Ross, 
the  judge  of  the  Court  of  Admiralty,  and  he  paid  the  money 
to  the  treasurer  of  the  State  of  Pennsylvania,  taking  from 
him  a  bond  of  indemnity.  The  state  claimed  the  prize  money. 
The  treasurer's  term  of  office  expired,  but  he  retained  the 
money  in  order  to  make  good  the  bond  he  had  given  the 
judge.  The  treasurer  died,  and  Olmstead  and  his  associates 
sued  his  executors  in  the  United  States  District  Court  for  the 
money  and  obtained  judgment.  But  now  the  legislature  of 
Pennsylvania  passed  an  act  to  protect  the  executors  in  their 
disobedience  of  the  decree  of  the  District  Court,  and  to  employ 
force  if  necessary  for  the  purpose.  Judge  Peters,  not  wishing 
to  embroil  the  United  States  with  the  state,  refused  to  direct 
the  execution  of  his  own  decree.  Hence  the  application  to 
1  United  States  v.  Peters,  5  Cranch,  115. 


266  CONSTITUTIONAL  HISTORY. 

the  Supreme  Court  of  the  United  States  to  compel  its  execu- 
tion. The  latter  Court  held  that  Olmstead  was  entitled  to 
the  money,  because  the  Court  of  Appeals  established  by  the 
confederate  Congress  had  jurisdiction  to  reverse  the  original 
decree  of  the  admiralty  court,  and  because  the  State  of  Penn- 
sylvania had  no  right  to  arrest  the  execution  of  the  decree,  or 
to  decide  that  the  court  which  pronounced  it  was  without 
jurisdiction.  "  If,"  said  Chief  Justice  Marshall,  in  delivering 
the  opinion  of  the  Court,  "  the  legislatures  of  the  several  states 
may  at  will  annul  the  judgments  of  the  courts  of  the  United 
States,  and  destroy  the  right  acquired  under  those  judgments, 
the  Constitution  itself  becomes  a  solemn  mockery,  and  the 
nation  is  deprived  of  the  means  of  enforcing  its  laws  by  the 
instrumentality  of  its  own  tribunals."  The  final  triumph  of 
the  United  States  was  the  occasion  of  intense  chagrin  on  the 
part  of  the  champions  of  state  sovereignty,  but  they  did  not 
think  it  prudent  to  plunge  the  state  into  war  with  the  United 
States. 

South  Carolina,  in  1832,  as  we  have  already  seen,  at- 
tempted by  her  ordinance  to  nullify  the  tariff  laws  of  the 
United  States  within  that  state.  The  ordinance  provided  that 
no  appeal  from  a  court  of  that  state  should  be  taken  to  a 
court  of  the  United  States  in  any  case  arising  under  laws 
passed  in  pursuance  of  the  ordinance.  Such  appeal  was  de- 
nounced as  a  contempt  of  the  state  court,  and  the  offender 
punishable.  That  difficulty  was  composed,  and  the  ordinance 
in  due  time  repealed. 

In  1824  the  State  of  Kentucky  was  greatly  exercised  over 
certain  decisions  of  the  Supreme  Court  with  respect  to  a  law 
of  the  state  regulating  titles.  This  law  was  held  to  violate 
the  contract  by  which  Virginia  ceded  the  territory  forming 
the  state.  The  Supreme  Court  also  held  the  laws  of  Ken- 
tucky, framed  to  stay  the  prompt  and  efficient  collection  of 
debts,  to  be  void,  because  violating  the  obligation  of  the  con- 
tract under  which  the  debts  were  created. 

The  State  of  Ohio  was  exasperated  because  the  Court  held 
that  the  state  had  no  right  to  tax  the  property  held  by  the 
branches  of  the  Bank  of  the  United  States  within  that  state. 
These  branches  were  held  to  be,  like  the  bank  itself,  agencies 


ATTEMPT   TO  REPEAL  JUDICIARY  ACT.  267 

of  the  government  of  the  United  States,  and  therefore  not  tax- 
able by  the  state,  since  the  power  to  tax  might  be  exercised 
to  destroy  the  agency.  In  defiance  of  the  judgment  of  the 
United  States  Court,  the  state  tax  was  collected  by  forcible 
seizure  of  the  funds  of  one  of  these  branches,  but  restitution 
was  subsequently  made. 

The  exercise  by  the  Supreme  Court  of  jurisdiction  to  re- 
view and  reverse  upon  appeal  the  judgments  of  state  courts, 
in  cases  in  which  the  supremacy  of  the  Constitution  of  the 
United  States  was  in  question  and  denied,  offended  the  cham- 
pions of  state  sovereignty.  A  bill  was  introduced  in  Congress 
in  1831  to  repeal  the  twenty-fifth  section  of  the  Judiciary  Act 
of  1789,  which  defined  and  regulated  the  jurisdiction.  The 
majority  of  the  committee  to  whom  the  bill  was  referred  re- 
ported in  favor  of  the  repeal,  upon  the  ground  that  the  juris- 
diction was  not  conferred  by  the  Constitution.  A  minority 
report  was  submitted  supporting  the  jurisdiction.  The  bill 
was  rejected  by  a  vote  of  one  hundred  and  thirty -eight 
against,  to  fifty-one  in  its  favor.  The  lucid  expositions  of  its 
jurisdiction  by  the  Supreme  Court,  notably  in  the  cases  of 
Martin  v.  Hunter's  Lessee,^  and  Cohens  v,  Virginia,^  satisfied 
and  convinced  the  majority  in  Congress. 

Perhaps  the  case  most  important  in  the  principles  enunci- 
ated, and  in  the  consequences  resulting  from  them,  that  ever 
came  before  the  Supreme  Court  is  known  as  McCullough  v. 
Maryland.^  It  involved  the  constitutionality  of  the  charter 
of  the  Bank  of  the  United  States,  and  thus  in  a  great  degree 
the  implied  powers  of  Congress  under  the  Constitution.  It 
also  involved  the  constitutionality  of  a  state  law  imposing  a 
tax  upon  the  property  held  by  a  branch  of  the  bank  within 
the  State  of  Maryland.  Under  the  state  law  this  property 
was  taxed,  and  the  bank  refused  to  pay  it,  and  its  casliier  was 
sued.  The  state  court  upheld  the  state  law  and  the  tax,  and 
gave  judgment  against  the  bank.  The  bank,  it  will  be  re- 
membered, obtained  its  first  charter  from  Congress  in  the 
first  administration  of  Washington.  It  was  one  of  the  prod- 
ucts of  the  brain  of  Hamilton,  and  one  of  the  victories  of 
the  Federalists  over  their  enemies.  Certainly  no  express 
1  1  Wheaton,  304.  2  g  Wheaton,  264.  «  4  Wheaton,  316. 


268  CONSTITUTIONAL  HISTORY. 

power  could  be  found  in  the  Constitution  to  justify  its  crea- 
tion ;  the  existence  of  any  adequate  impHed  power  was  denied 
with  emphasis  and  confidence  by  the  Anti-Federalists.  The 
charter  first  granted  expired  in  1811.  Congress  then  at  first 
refused,  by  the  casting  vote  of  George  Clinton  the  Vice-Presi- 
dent, to  renew  it.  Its  affairs  were  wound  up,  and  its  stock- 
holders received  109J  per  centum  upon  the  dollar  for  the 
stock.  Then  local  or  state  banks  took  its  place.  These  sus- 
pended during  the  War  of  1812,  and  great  distress  was  occa- 
sioned by  a  depreciated  paper  currency.  The  Anti-Federalists 
were  in  power.  The  war  and  the  bad  currency  of  the  local 
banks,  and  the  need  of  the  government  to  borrow  moneys 
gradually  reconciled  the  Anti-Federalists  to  the  project  of  an- 
other national  bank.  In  1816,  five  years  after  the  first  bank 
had  discontinued  its  business,  the  necessity  for  financial  re- 
lief, and  the  hope  to  find  it  by  means  of  the  bank,  led  to  its 
charter  substantially  upon  the  model  of  the  original  one.  It 
had  a  capital  of  135,000,000,  of  which  the  United  States  held 
i7,000,000.  It  had  twenty-five  branches  in  che  different 
states.  It  was  for  that  day  a  great  institution.  It  had 
power  and  patronage  which  many  enjoyed,  and  perhaps  more 
felt  that  they  might  enjoy,  if  properly  allotted.  It  is  not  sur- 
prising that  the  old  bitterness  and  divisions  which  caused 
Hamilton  and  Jefferson  to  fall  asunder  in  the  cabinet  of 
Washington  should  arise  between  the  new  generation  of  rival 
public  men. 

When  the  bank  refused  to  pay  the  tax  which  the  state  im- 
posed and  appealed  to  the  Constitution  for  its  justification, 
the  state  retorted  by  claiming  that  the  Constitution  did  not 
permit  it  to  exist.  Both  questions  now  came  to  the  test  of 
judicial  decision.  William  Pinkney  and  Daniel  Webster  were 
counsel  for  the  bank.  Pinkney,  by  common  fame,  was  then 
the  leader  of  the  American  bar.  He  made  the  principal  ar- 
gument upon  his  side.  Chief  Justice  Marshall  once  said  of 
him  that  "he  was  far  away  the  greatest  advocate  he  ever 
heard."  He  spoke  to  be  heard  rather  than  read.  His  argu- 
ment upon  that  occasion  was  long  after  remembered,  and  re- 
garded by  those  fortunate  enough  to  hear  it  as  unequalled  for 
splendor  and  force. 


THE  BANK   CHARTER   SUSTAINED.  269 

Luther  Martin,  already  mentioned  as  one  of  the  delegates 
to  the  Constitutional  Convention,  and  an  eloquent  opponent  of 
the  ratification  of  the  instrunaent,  now  led  the  array  of  counsel 
on  behalf  of  the  state. 

The  Court  sustained  the  constitutionality  of  the  charter  of 
the  bank,  and  declared  the  law  of  the  State  of  Maryland  tax- 
ing it  unconstitutional,  upon  grounds  stated  in  a  previous  lec- 
ture.^ 

Respecting  the  power  of  the  state  to  tax  the  property  of 
the  bank,  the  court  held  that  the  bank  was  created  as  one  of 
the  means  to  carry  on  the  government;  that  the  power  to 
create  implied  the  power  to  protect  it ;  that  if  the  state  could 
tax  it,  it  could  so  tax  as  to  destroy  it,  and  hence  the  state 
could  destroy  a  governmental  instrument  of  the  United  States 
—  a  proposition  not  admissible ;  that  the  sovereignty  of  the 
state  extended  to  everything  which  exists  by  its  authority  or 
permission ;  that  the  bank  did  not  so  exist,  but  existed  by  vir- 
tue of  the  creative  power  of  the  United  States,  and  was  there- 
fore within  the  sovereignty  of  the  United  States,  and  without 
that  of  the  state ;  and,  finally,  that  the  sovereignty  of  the 
United  States  was  exclusive  of  that  of  the  state,  and  not  sub- 
ject to  any  control  or  diminution  on  the  part  of  the  state. 

These  conclusions  were  reached  by  a  range  of  discussion 
much  broader  than  this  synopsis  suggests.  The  powers  of 
Congress,  as  thus  defined,  were  found  to  be  broad  enough  to 
give  it,  unchecked  by  any  restrictions  on  the  part  of  the  states, 
ample  authority,  within  the  sphere  of  its  enumerated  powers, 
to  use  whatever  expedient  means  it  should  decide  to  be  nec- 
essary for  the  purpose  of  executing  its  enumerated  powers. 
In  other  words,  while  the  government  was  one  of  limited  pow- 
ers, the  powers  it  did  hold  it  held  supreme  over  the  interfer- 
ence of  the  states,  with  all  the  means  necessary  and  proper 
for  their  exercise  and  complete  supremacy. 

Circumstances  aided  in  giving  to  this  case  an  importance 
and  influence,  with  respect  to  questions  involving  the  nature 
and  origin  of  the  government,  not  strictly  necessary  to  the 
solution  of  the  questions  presented  for  decision.  Counsel  had 
deemed  it  important  to  discuss  the  question  whether  the  Con- 

1  See  page  113. 
UNIVEBHITT 


270  CONSTITUTIONAL  HISTORY. 

stitution  emanated  from  the  people,  or  whether  it  was  a  com- 
pact between  sovereign  and  independent  states.  The  Court 
said :  —  ' 

"  The  convention  which  framed  the  Constitution  was  indeed  elected 
by  the  state  legislatures.  But  the  instrument,  when  it  came  from  their 
hands,  was  a  mere  proposal,  without  obligation  or  pretensions  to  it. 
It  was  reported  to  the  then  existing  Congress  of  the  United  States, 
with  a  request  that  it  might  be  submitted  to  a  convention  of  dele- 
gates chosen  in  each  state  by  the  people  thereof,  under  the  recom- 
mendation of  its  legislature,  for  their  assent  and  ratification.  This 
mode  of  proceeding  was  adopted;  and  by  the  convention,  and  by 
Congress,  and  by  the  state  legislatures,  the  instrument  was  submitted 
to  the  people.  They  acted  upon  it  in  the  only  manner  in  which  they 
can  act  safely,  effectively,  and  wisely  on  such  a  subject,  by  assem- 
bling in  convention.  It  is  true  they  assembled  in  states,  but  where 
else  should  they  have  assembled?  .  .  .  From  these  conventions  the 
Constitution  derives  its  whole  authority.  The  government  proceeds 
directly  from  the  people  ;  it  is  ordained  and  established  in  the  name 
of  the  people ;  and  is  declared  to  be  ordained,  *  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tranquillity, 
and  secure  the  blessings  of  liberty  to  themselves  and  to  their  poster- 
ity.' The  assent  of  the  states  in  their  sovereign  capacity  is  implied 
in  calling  a  convention,  and  thus  submitting  that  instrument  to  the 
people.  But  the  people  were  at  perfect  liberty  to  accept  or  reject 
it ;  and  their  act  was  final.  It  required  not  the  affirmance  and  could 
not  be  negatived  by  the  state  governments.  The  Constitution  when 
thus  adopted  was  of  complete  obligation  and  bound  the  state  sover- 
eignties. .  .  . 

"  It  is  said,"  continued  the  Court,  "  that  the  people  had  already 
surrendered  all  their  powers  to  the  state  sovereignties  and  had  noth- 
ing more  to  give.  But  surely  the  question,  whether  they  may  re- 
sume and  modify  the  powers  granted  to  government,  does  not  remain 
to  be  settled  in  this  country.  Much  more  might  the  legitimacy  of  the 
general  government  be  doubted,  if  it  had  been  created  by  the  states. 
The  powers  delegated  to  the  state  sovereignties  were  to  be  exercised 
by  themselves,  not  by  a  distinct  and  independent  sovereignty,  created 
by  themselves.  To  the  formation  of  a  league,  such  as  was  the  con- 
federation, the  state  sovereignties  were  certainly  competent.  But 
when,  '  in  order  to  form  a  more  perfect  union,'  it  was  deemed  neces- 
sary to  change  this  alliance  into  a  more  effective  government,  possess- 
ing great  and  sovereign  powers,  and  acting  directly  on  the  people, 


THE  COURT  THE  FINAL   ARBITER.  271 

the  necessity  of  referring  it  to  the  people  and  of  deriving  its  powers 
from  them  was  felt  and  acknowledged  by  all.  .  .  .  The  government 
of  the  Union,  then,  is  emphatically  and  truly  a  government  of  the 
people.  In  form  and  substance  it  emanates  from  them.  Its  powers 
are  granted  by  them,  and  are  to  be  exercised  directly  on  them  and 
for  their  benefit." 

This  opinion  formed  the  basis  of  the  great  argument  of 
Webster  in  his  reply  to  Hayne,  eleven  years  later  ;  of  the  proc- 
lamation of  President  Jackson  against  nullification  in  South 
Carolina ;  and  of  the  argument  in  defence  of  the  indestructi- 
bility of  the  Union  in  the  war  of  the  rebellion  in  1861. 

The  Constitution,  said  the  Court,  in  Texas  v.  White,i  re- 
quires the  United  States  to  guarantee  to  every  state  a  repub- 
lican form  of  government.  Hence,  when  the  rebellion  broke 
out,  Congress  had  the  power  to  make  all  laws  necessary  and 
proper  to  carry  that  guarantee  into  effect,  and  to  make  that 
choice  of  means  appropriate  to  the  purpose. 

It  finally  came  to  be  regarded  as  unquestionable  law,  not, 
however,  without  unavailing  protests,  that  the  Supreme  Court 
was  the  final  and  proper  arbiter  in  all  questions  of  constitu- 
tional law,  which,  with  the  exception  of  the  strictly  political 
exercise  of  constitutional  authority,  could,  under  the  Constitu- 
tion and  the  judiciary  act,  be  brought  before  the  Court.  Mr. 
Chief  Justice  Taney,  in  1858,  in  the  case  of  Ableman  v. 
Booth, 2  already  referred  to,  said  :  — 

"  No  one  can  fail  to  see  that,  if  such  an  arbiter  had  not  been  pro- 
vided in  our  complicated  system  of  government,  internal  tranquillity 
could  not  have  been  preserved,  and  if  such  controversies  between  the 
respective  powers  of  the  United  States  and  of  the  states  were  left  to 
the  arbitrament  of  physical  force,  our  governments,  state  and  national, 
would  soon  cease  to  be  governments  of  laws  ;  and  revolutions  by 
force  of  arms  would  take  the  place  of  courts  of  justice,  and  of  judicial 
decisions.  .  .  .  Nor  is  there,"  he  continues,  "anything  in  this  suprem- 
acy of  the  general  government,  or  the  jurisdiction  of  its  judicial  tri- 
bunals, to  awaken  the  jealousy  or  offend  the  natural  or  just  pride  of 
state  sovereignty ;  neither  this  government  nor  the  powers  of  which 
we  are  speaking  were  forced  upon  the  states.  The  Constitution  of 
the  United  States,  with  all  the  powers  conferred  by  it  on  the  general 

1  7  Wallace,  700.  2  21  How.  506. 


272  CONSTITUTIONAL  HISTORY. 

government,  and  surrendered  by  the  states,  was  the  voluntary  act  of 
the  people  of  the  several  states,  deliberately  done  for  their  own  pro- 
tection and  safety  against  injustice  from  one  another.  .  .  .  The  im- 
portance which  the  framers  of  the  Constitution  attached  to  such  a 
tribunal  for  the  purpose  of  preserving  internal  tranquillity  is  strik- 
ingly manifest  by  the  clause  which  gives  the  Court  jurisdiction  over 
the  sovereign  states,  when  a  controversy  arises  between  them.  In- 
stead of  reserving  the  right  to  seek  redress  for  injustice  from  an- 
other state  by  their  sovereign  powers,  they  have  bound  themselves 
to  submit  to  the  decision  of  this  Court,  and  to  abide  by  its  judgment. 
And  it  is  not  out  of  place,  here,  to  say  that  experience  has  demon- 
strated that  this  power  was  not  unwisely  surrendered  by  the  states  ; 
for,  in  the  time  that  has  already  elapsed  since  this  government  came 
into  existence,  several  irritating  and  angry  controversies  have  taken 
place  between  adjoining  states,  in  relation  to  their  respective  boun- 
daries, and  which  have  sometimes  threatened  to  end  in  force  and 
violence,  but  for  the  power  vested  in  this  Court  to  hear  and  decide 
them.  .  .  . 

"  The  Constitution  was  not  formed  merely  to  guard  the  states  against 
danger  from  foreign  nations,  but  mainly  to  secure  union  and  harmony 
at  home ;  for  if  this  object  could  be  attained,  there  would  be  but 
little  danger  from  abroad." 

It  was  feared  by  many  when  Chief  Justice  Taney  succeeded 
Marshall,  and  the  Court  seemed  about  to  be  composed  of  the 
appointees  of  Jackson  and  presidents  of  his  school,  that  the 
constitutional  expositions  of  Marshall  would  be  repudiated, 
and  a  narrow  line  of  construction  adopted,  which  would  de- 
prive the  nation  of  its  ability  to  maintain  its  proper  supremacy 
against  the  assaults  of  the  states.  Webster  said  he  feared 
the  Constitution  would  be  destroyed  by  judicial  construction. 
Judge  Story,  in  1845,  expressed  the  same  fear.  But  it  was 
unfounded.  The  change  which  occurred  during  the  twenty- 
eight  years  in  which  Taney  sat  in  the  seat  of  the  Chief  Justice 
did  not  result  in  any  abandonment  of  the  principles  of  con- 
struction which  Marshall  and  his  associates  had  enunciated. 
But  the  new  cases,  with  their  variety  of  circumstance,  required 
a  clear  and  fine  discrimination  in  the  application  of  those 
principles,  and  it  was  most  admirably  given.  If  we  may  judge 
from  the  increased  number  of  dissenting  opinions  published, 
the  Court  was  not  so  harmonious  and  united  upon  great  con- 


\ 


BACKWARD  STEPS  ADVOCATED.        273 

stitutional  questions,  as  it  had  previously  been.  When  a  new 
question  was  presented  involving  the  implied  powers  of  the 
nation,  or  challenging  the  exercise  of  doubtful  powers  by  the 
state,  there  was,  perhaps,  some  shrinking  back  from  the  most 
advanced  line  of  the  national  claim,  and  some  pushing  for- 
wards towards  the  most  advanced  line  of  the  state  claim,  but 
the  old  landmarks  were  never  abandoned. 

No  backward  steps  were  taken,  although  some  members  of 
the  Court  were  advocates  of  a  retrograde  movement.  In  this 
respect  Mr.  Justice  Daniel  of  Virginia,  a  member  of  the  Court 
from  1841  to  1860,  was  conspicuous  and  consistent.  During 
his  nineteen  years  of  service  he  wrote  the  opinion  of  the  Court 
in  only  eighty-four  cases.  Of  course  he  concurred  with  the 
Court  in  many  more  cases  in  which  other  members  wrote  the 
opinion.  But  he  dissented  in  one  hundred  and  eleven  cases, 
either  from  the  conclusion  or  the  opinion  of  the  Court.  His 
dissent  was  generally  based  upon  the  theory  that  the  Consti- 
tution must  be  literally  and  strictly  construed.  To  use  his 
words  as  reported  in  Marshall  z;.  B.  &  O.  R.  R.  Co.^ 

"The  Constitution  itself  is  nothing  more  than  an  enumeration  of 
general  abstract  rules,  promulged  by  the  several  states  for  the  guid- 
ance or  control  of  their  creature  or  agent,  the  federal  government, 
which  for  their  exclusive  benefit  they  were  about  to  call  into  being. 
Apart  from  these  abstract  rules,  the  federal  government  can  have  no 
functions  and  no  existence." 

He  protested  often  and  with  emphasis  against  the  doctrines 
of  the  majority,  which  he  characterized  either  as  additions  to 
the  Constitution  or  invasions  of  it.  But  he  came  too  late  into 
the  Court  to  be  able  to  lead  it  from  its  established  principles. 

The  consequences  resulting  from  the  decisions  of  the  Su- 
preme Court,  that  the  Constitution  makes  it  the  duty  of  the 
Court  to  declare  an  unconstitutional  law,  whether  of  Congress 
or  of  the  state  legislatures,  void,  when  such  declaration  is  nec- 
essary to  the  proper  decision  of  the  case  before  it,  and  that  its 
appellate  jurisdiction  extends  to  all  judgments  of  the  state 
courts  denying  the  supremacy  of  the  federal  Constitution  over 
the  state  law,  were  most  momentous. 

Not  immediately,  but  gradually,  ultimately,  and  surely,  the 

1  16  Howard,  346. 
18 


274  CONSTITUTIONAL  HISTORY. 

Court  by  its  decisions  separated  the  national  and  state  powers 
from  their  confusing  mixture,  and  gave  to  each  clearness  of 
outline  and  distinctness  of  place.  It  gave  to  the  abstract 
words  of  the  Constitution  an  active  and  commanding  signifi- 
cance. It  disclosed  the  instrumentalities  by  which  rights  con- 
ferred could  be  enjoyed,  and  wrongs  forbidden  could  be  averted 
or  redressed.  It  composed  conflicts,  promoted  harmony,  and 
soothed  passions.  It  defined  the  just  limits  of  contending 
powers,  separated  encroaching  jurisdictions,  and  restored  each 
to  its  proper  place.  It  lifted  a  dissolving  and  moribund  nation 
to  great  strength  and  vitality.  It  gave  to  the  states  clear  and 
accurate  conceptions  of  their  wide  field  of  domestic  government. 
It  instructed  coordinate  departments.  It  vested  the  nation 
with  its  own,  and  did  not  impair  the  just  powers  of  the  states. 
The  peaceful  manner  in  which  all  this  was  accomplished 
made  the  accomplishment  more  remarkable.  Revolutionary 
results  without  revolutionary  means  are  rarely  witnessed  in 
the  history  of  mankind.  Congress  was  restrained  from  passing 
laws  in  excess  of  its  powers,  not  indeed  by  the  command  of 
the  Court,  but  because  at  the  suit  of  the  humblest  person  in 
the  land  an  unconstitutional  law  perished  in  the  presence  of 
the  decree  which  awarded  justice  to  the  suitor;  partly  also, 
because  the  wisdom  and  purity  of  the  Court  inspired  a  re- 
spect not  less  commanding  than  authority  itself. 

In  like  manner  the  attempts  of  the  states  to  encroach  upon 
the  national  jurisdiction  were  palsied  by  the  decree  of  the 
Court,  not  between  the  nation  and  state,  but  between  the 
contending  claimants  over  hostile  personal  interests.  The 
opinion  of  the  Court  secured  obedience.  The  questions  in- 
volved were  discussed  and  decided  in  the  temperate  atmos- 
phere of  the  Court,  and  rarely  attracted  public  attention. 
The  public  seldom  pauses  to  listen  to  the  quiet  argument  of 
counsel  before  the  Court,  however  momentous  it  may  be  upon 
the  decision  it  affects.  Indeed,  the  principle  of  the  decision 
itself  may  wait  for  generations  before  the  governmental  exi- 
gency arises  which  it  proves  apt  and  potent  to  control. 

The  Dred  Scott  decision  was  the  most  important  of  any 
brought  before  the  Court  while  Chief  Justice  Taney  presided. 
We  have  elsewhere  spoken  of  this  case.     It  was  the  judicial 


THE  COURT  UPON  WAR  POWERS.  276 

indorsement  of   the  extreme  pro-slavery  construction  of  the 
Constitution.     It  helped  to  precipitate  the  rebellion,  and  in 
directly  led  to  the  adoption  of    the  Thirteenth,  Fourteenth, 
and  Fifteenth  amendments  to  the  Constitution. 

The  rebellion,  in  1861,  found  the  Court,  upon  its  conven- 
ing in  December,  composed  of  Chief  Justice  Taney  of  Mary- 
land, Justices  Wayne  of  Georgia,  Catron  of  Tennessee,  Nelson 
of  New  York,  Grier  of  Pennsylvania,  and  Clifford  of  Maine. 
There  were  three  vacancies,  one  caused  by  the  resignation  of 
Justice  Campbell  of  Louisiana,  and  two  by  the  deaths  of  Jus- 
tices Daniel  and  McLean.  The  Court  as  thus  composed  was 
not  in  sympathy  with  the  political  party  which  had  placed 
Mr.  Lincoln  in  the  presidency.  Justice  Wayne,  the  senior 
member  of  the  bench,  had  been  appointed  by  President  Jack- 
son while  Marshall  was  yet  Chief  Justice.  Justice  Catron 
was  really  the  appointee  of  President  Jackson.  He  received 
his  appointment  on  the  fourth  day  of  March,  1837,  the  first 
day  of  Van  Buren's  presidency.  These  venerable  judges 
came  from  states  which  had  seceded.  But  they  were  faithful 
to  the  Union,  and  to  the  Constitution. 

In  1862,  several  cases  were  brought  before  the  Court  by  the 
claimants  of  goods  and  vessels  captured  by  the  union  gun- 
boats for  violating  the  blockade  instituted  by  President  Lin- 
coln. The  cases  illustrate  the  magnitude  of  the  jurisdiction 
of  the  Supreme  Court  in  our  system,  and  also  the  right  of  the 
private  citizen  to  appeal  to  it  for  redress  for  wrongs  done  him 
by  the  nation  even  in  war. 

The  questions  presented  were  the  right  of  the  government 
to  establish  a  blockade  of  its  own  ports  in  a  civil  war,  and 
the  right  of  the  President  to  institute  such  a  blockade  in  the 
absence  of  any  act  of  Congress  declaring  or  recognizing  a 
state  of  war. 

The  Court  held  that  Congress  alone  had  power  to  declare 
a  national  or  foreign  war ;  but  civil  war  breaks  out  without 
any  declaration ;  it  becomes  a  fact,  and  the  President  must 
recognize  it.  He  is  bound  to  take  care  that  the  laws  be 
faithfully  executed,  and  to  suppress  insurrection  against  the 
United  States.  He  is  bound  to  meet  it  in  the  shape  in  which 
it  presents  itself,  without  waiting  for  Congress  to  baptize  it 


276  CONSTITUTIONAL  HISTORY. 

with  a  name.  He  must  decide  whether  war  exists,  and  his 
decision  binds  the  people  and  the  courts.  He  must  decide 
whether  a  blockade  is  a  proper  exercise  of  force  to  suppress 
the  insurrection  and  war,  and  when  he  decides  that  it  is,  he 
has  the  right  to  institute  it.  The  opinion  of  the  court  was 
delivered  by  Justice  Grier,  and  was  concurred  in  by  Justices 
Wayne,  Swayne,  Miller,  and  Davis.  The  three  latter  jus- 
tices had  been  appointed  by  President  Lincoln.  Chief  Justice 
Taney  and  Justices  Catron,  Nelson,  and  Clifford  dissented. 
They  were  of  opinion  that  without  tbe  previous  declaration 
of  war  by  Congress  the  President  had  no  right  to  institute  the 
blockade.^ 

The  case  is  a  remarkable  one.  In  the  greatest  of  civil 
wars,  while  it  was  yet  raging,  while  the  very  existence  of  the 
government  was  threatened  by  it,  the  judicial  department, 
upon  solemn  and  learned  argument,  deliberate,  and  decide 
by  a  bare  majority  of  one,  the  question  whether  the  initial 
steps  taken  for  the  suppression  of  the  rebellion  and  war  by 
the  executive  department  in  advance  of  any  action  by  the 
legislative  department,  and  while  the  latter,  not  being  in  ses- 
sion, can  take  no  action,  are  lawfully  taken. 

The  rebellion  was  fruitful  of  questions  involving  the  war 
powers  of  tbe  nation.  The  Court  held  that  the  authority  to 
suppress  rebellion  was  found  in  the  constitutional  provisions 
to  carry  on  war  and  suppress  insurrection ;  that  power  to  re- 
construct tbe  governments  of  the  seceding  and  subdued  states 
was  derived  from  the  obligation  of  the  United  States  to  guar- 
antee to  every  state  a  republican  form  of  government  ;2  that 
to  put  down  the  rebellion  the  United  States  had  the  powers 
of  a  sovereign  and  of  a  belligerent ;  ^  that  rebels  in  arms 
might  be  treated  as  public  enemies,  their  property  confis- 
cated, and  the  offenders  punished ;  *  that  the  ordinances  of 
secession  passed  by  the  seceding  states  were  void ;  ^  that  the 
judgments  of  the  confederate  courts  were  void  except  so  far 
as  public  policy  and  justice  otherwise  require;^  and  that  all 
acts  done  in  aid  of  the  rebellion  were  void.''^ 

1  Prize  Cases,  2  Black,  635.  2  7  Wallace,  700. 

8  92  U.  S.  Rep.  187.  *  11  Wallace,  269. 

s  6  Wallace.  443.  »  111  U.  S.  Rep.  48. 
7  96  U.  S.  Rep.  193. 


I 


THE  GREAT  CHIEF  JUSTICE.  277 

The  Court  also  vindicated  the  supremacy  of  the  civil  over 
the  military  power,  in  the  loyal  states,  during  the  existence  of 
the  rebellion.  It  held  that  military  commissions  organized 
during  the  civil  war,  in  a  state  not  invaded  and.  not  engaged 
in  rebellion,  in  which  the  federal  courts  were  open  and  in  the 
proper  and  unobstructed  exercise  of  their  judicial  functions, 
had  no  jurisdiction  to  try,  convict,  or  sentence  for  any  crimi- 
nal offence,  a  citizen  who  was  not  a  resident  of  a  rebellious 
state,  or  a  prisoner  of  war,  or  in  the  military  or  naval  service ; 
that  Congress  could  not  invest  military  courts  with  such  pow- 
ers, but  that  the  offender  was  entitled  under  the  Constitution 
to  a  trial  by  jury,  a  right  guaranteed  as  well  in  times  of  war 
as  in  peace ;  and  that  such  a  trial  is  only  denied  in  cases  aris- 
ing in  the  land  and  naval  forces,  and  in  the  militia,  in  time 
of  war  or  public  danger.^  The  Court  also  held  that  a  person 
who  is  a  resident  of  a  loyal  state,  where  he  was  arrested,  who 
was  never  a  resident  of  a  rebellious  state,  nor  connected  with 
the  military  or  naval  forces,  cannot  be  regarded  as  a  prisoner 
of  war. 

Thus  by  one  decision  of  the  Court  the  safeguards  of  per- 
sonal liberty,  which  it  was  feared  the  great  war-powers  of  the 
nation  had  subverted  or  invaded,  were  reinstated  in  their 
original  vigor. 

Chief  Justice  Taney  died  in  1864,  and  was  succeeded  by 
Chief  Justice  Chase.  The  majority  of  the  Court  was  now 
composed  of  the  appointees  of  President  Lincoln.  If  any 
change  could  be  noticed  in  the  tone  of  the  Court,  it  was  in 
the  recognition  and  deference  paid  to  the  judgments  an- 
nounced by  Chief  Justice  Marshall. 

Time  has,  indeed,  exalted  the  fame  of  the  great  Chief  Jus- 
tice. We  can  see  now  that  if,  during  the  thirty-five  years  in 
which  he  presided,  the  rule  of  the  narrow  constructionists 
had  prevailed,  the  Constitution  would,  like  the  Articles  of 
Confederation,  have  proved  altogether  too  weak  and  impo- 
tent a  governmental  system  for  the  great  nation. 

Chief  Justice  Marshall,  in  the  face  of  the  opposing  con- 
struction of  the  parties  which  held  power  in  the  executive 
and  legislative  departments  of  the  nation,  rose  to  the  height 

1  Ex  parte  Milligan,  4  Wallace,  3. 


278  CONSTITUTIONAL  HISTORY. 

of  the  contemporary  and  future  demands  of  the  government, 
and  expounded  the  Constitution  with  the  wisdom  of  the  sage 
and  the  prescience  of  the  seer.  When  the  rebellion  broke 
out,  his  judgments  proved  authoritative  for  the  maintenance 
of  the  integrity  of  the  Union,  its  inherent  existence  as  one 
nation,  and  its  right  to  seize  and  wield  its  arms  to  subdue 
the  revolt  of  the  seceding  states.  It  was  in  1883,  at  the  Cap- 
itol in  Washington,  forty-nine  years  after  his  death,  that  the 
national  Congress  and  the  representatives  of  the  national  bar 
assembled  together  and  unveiled  with  becoming  ceremonies 
the  bronze  statue  of  John  Marshall.  Time  had  made  the 
more  conspicuous  his  merits,  and  silenced  envious  and  parti- 
san detraction.  The  keenest  powers  of  legal  criticism  and 
analysis,  focused  upon  his  opinions  for  forty-nine  years,  had 
shown  with  what  breadth  and  strength  he  had  placed  the 
nation  upon  the  Constitution.  The  rebellion  was,  in  some 
degree,  an  appeal  from  the  judgments  of  Marshall  to  the  arbit- 
rament of  war.  Then  it  was  more  fully  disclosed  how  lumi- 
nous he  had  made  the  dark  places  in  our  constitutional  charter 
of  powers.  In  the  light  of  his  expositions  the  nation  found 
authority  to  protect  itself. 

It  may  be  that  monuments  of  brass  and  marble,  as  well  as 
the  robes  sometimes  worn  by  the  priest  and  judge,  are  rem- 
nants of  those  objective  displays  by  which  power  and  preten- 
sion awed  and  subdued  barbarians,  and  are  therefore  unfit  to 
commemorate  intellectual  and  moral  worth.  Be  this  as  it 
may,  the  recorded  opinions  of  Marshall  are  his  real  monu- 
ment. Bronze  and  marble  may  assert  that  he  was  great,  but 
his  opinions  attest  it. 

It  is  interesting  to  notice  with  what  vigor  and  directness 
Marshall's  doctrine  was  enunciated  by  the  Court  after  the  re- 
bellion had  been  subdued.  Thus,  in  1870,  in  Knox  v.  Lee,^ 
Mr.  Justice  Bradley  said :  — ■ 

"  The  doctrines  so  long  contended  for,  that  the  federal  Union  was 
a  mere  compact  of  states,  and  that  the  states,  if  they  chose,  might  an- 
nul or  disregard  the  acts  of  the  national  legislature,  or  might  secede 
from  the  Union  at  their  pleasure,  and  that  the  general  government 
had  no  power  to  coerce  them  into  submission  to  the  Constitution, 
1  12  Wallace.  555. 


WAR  AFFIRMS  THE   COURT'S  VIEW.  279 

should  be  regarded  as  definitely  and  forever  overthrown.  This  has 
finally  been  effected  by  the  national  power,  as  it  had  often  been  before 
by  overwhelming  argument.  .  .  .  The  United  States  is  not  only  a 
government,  but  it  is  a  national  government,  and  the  only  govern- 
ment in  this  country  that  has  the  character  of  nationality ;  it  is  in- 
vested with  power  over  all  the  foreign  relations  of  the  country,  war, 
peace,  and  negotiations  and  intercourse  with  other  nations  ;  all  which 
are  forbidden  to  the  state  governments.  It  has  jurisdiction  over  all 
those  general  subjects  of  legislation  and  sovereignty  which  affect  the 
interests  of  the  whole  people  equally  and  alike,  and  which  require 
uniformity  of  regulations  and  laws,  such  as  the  coinage,  weights  and 
measures,  bankruptcies,  the  postal  system,  patent  and  copyright 
laws,  public  lands,  and  interstate  commerce  :  all  which  subjects  are 
expressly  or  impliedly  prohibited  to  the  state  governments.  It  has 
power  to  suppress  insurrections,  to  repel  invasions,  to  organize,  arm, 
discipline  into  the  service,  the  militia  of  the  whole  country.  The 
President  is  charged  with  the  duty,  and  invested  with  the  power  to 
take  care  that  the  laws  be  faithfully  executed.  The  judiciary  has 
jurisdiction  to  decide  controversies  between  the  states,  and  between 
their  respective  citizens,  as  well  as  questions  of  national  concern ; 
and  the  government  is  clothed  with  power  to  guarantee  to  every 
state  a  republican  form  of  government,  and  to  protect  each  of  them 
against  invasion  and  domestic  violence.  For  the  purpose  of  carrying 
into  effect  these  and  other  powers  conferred,  and  of  providing  for 
the  common  defence  and  general  welfare,  Congress  is  further  invested 
with  the  taxing  power  in  all  its  forms,  except  that  of  laying  duties 
upon  exports,  with  the  power  to  borrow  money  on  the  national  credit, 
to  punish  crimes  against  the  laws  of  the  United  States  and  of  nations, 
to  constitute  courts,  and  to  make  all  laws  necessary  and  proper  for 
carrying  into  execution  the  various  powers  vested  in  the  government 
or  any  department  or  officer  thereof." 

In  1883,  Mr.  Justice  Miller  said  :  ^  — 

"  The  proposition  that  the  general  government  has  not  the  power 
to  protect  the  elections  upon  which  its  existence  depends  from  vio- 
lence and  force  is  supported  by  the  old  argument,  often  heard,  of- 
ten repeated,  and  in  this  Court  never  assented  to,  that  when  a  ques- 
tion of  the  power  of  Congress  arises,  the  advocate  of  the  power  must 
be  able  to  place  his  finger  on  words  which  expressly  granted  it.  It 
destroys  at  one  blow,  in  construing  the  Constitution  of  the  United 
States,  the  doctrine  universally  applied  to  all  instruments  in  writing, 

i  Ex  parte  Yarbrough,  110  U.  S.  Rep.  658. 
UNIVERSITY 


280  CONSTITUTIONAL  HISTORY. 

that  what  is  implied  is  as  much  a  part  of  the  instrument  as  what  is 
expressed.  This  principle  in  its  application  to  the  Constitution  of 
the  United  States,  more  than  to  almost  any  other  writing,  is  a  neces- 
sity, by  reason  of  the  inherent  inability  to  put  into  words  all  deriva- 
tive powers,  a  difficulty  which  the  instrument  itself  recognizes,  by 
conferring  upon  Congress  the  authority  to  pass  all  laws  necessary 
and  proper  for  carrying  into  execution  the  powers  expressly  granted, 
and  all  other  powers  vested  in  the  government  or  any  branch  of  it 
by  the  Constitution.'* 

In  Texas  v.  White,^  Chief  Justice  Chase,  after  referring  to 
the  Articles  of  Confederation,  by  which  the  Union  was  de- 
clared to  "  be  perpetual,"  and  then  to  the  Constitution,  or- 
dained "  to  form  a  more  perfect  union,"  said  :  — 

*'  What  can  be  indissoluble,  if  a  perpetual  union  made  more  per- 
fect, is  not  ?  .  .  .  The  people  of  each  state  compose  a  state,  having 
its  own  government  and  endowed  with  all  the  functions  essential 
to  separate  and  independent  existence,  and  without  the  states  in 
union  there  could  be  no  such  political  body  as  the  United  States. 
The  preservation  of  the  states  and  the  maintenance  of  their  govern- 
ments are  as  much  within  the  care  of  the  Constitution  as  the  pres- 
ervation of  the  Union  and  the  maintenance  of  the  national  govern- 
ment. The  Constitution  in  all  its  provisions  looks  to  an  indestructi- 
ble Union  composed  of  indestructible  states." 

1  7  Wallace,  725. 


LECTURE  XII. 

THE  THIRTEENTH,   FOURTEENTH,  AND     FIFTEENTH    AMEND- 
MENTS, AS  CONSTRUED  BY  THE  SUPREME   COURT. 

The  Thirteenth,  Fourteenth,  and  Fifteenth  amendments 
mark  a  new  era  in  our  constitutional  history.  They  did  not 
grant  universal  manhood  suffrage,  but  they  led  to  it.  They 
did  constitute  the  deed  of  gift,  by  the  United  States,  of 
freedom  and  citizenship  to  the  slave  and  to  the  native  and 
naturalized  negro,  and  hence,  either  directly  or  indirectly,  of 
every  civil  right,  privilege,  and  immunity  which  freedom  and 
citizenship  confer  upon  the  negro  race.  This  was  their  pri- 
mary object.  But  their  scope  was  far  wider ;  and  its  full 
extent  has  not  yet  been  ascertained.  The  possible  scope  and 
effect  of  these  amendments  upon  all  the  people  of  the  United 
States,  and  upon  the  power  of  the  nation,  to  exercise,  control, 
and  abridge  the  powers  of  the  states  in  the  making  of  the  laws 
which  affect  the  personal  rights  of  all  the  people,  made  these 
amendments  a  critical  turning-point  in  our  constitutional  his- 
tory. Both  the  nation  and  the  states  stood  at  the  dividing 
of  ways.  Which  way  would  be  taken  depended  upon  the 
construction  which  the  Supreme  Court  should  give  to  these 
amendments.  No  more  solemn  or  momentous  responsibility 
had  devolved  upon  the  Court  since  the  foundation  of  the  gov- 
ernment. Passing  by  the  question  of  the  liberty,  citizenship, 
and  civil  rights  of  the  negro  race,  with  respect  to  which  the 
purpose  and  effect  of  the  amendments  were  supposed  to  be 
clear,  the  first  section  of  the  Fourteenth  Amendment  presented 
questions,  not  only  fairly  debatable,  but  of  a  consequence  and 
gravity  scarcely  possible  to  overestimate. 

This  section  provides  :  — 

"  All  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States,  and  of 


282  CONSTITUTIONAL  HISTORY. 

the  state  wherein  they  reside.  No  state  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States  ;  nor  shall  any  state  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws." 

The  fifth  section  provides  :  — 

"  The  Congress  shall  have  power  to  enforce  by  appropriate  legisla- 
tion the  provisions  of  this  article." 

The  extent  and  definition  of  citizenship  of  the  United  States 
had  been  a  vexed  question,  greatly  discussed  but  not  settled  in 
the  Dred  Scott  case.  Did  this  amendment  put  all  these  ques- 
tions aside  and  make  citizenship  of  the  United  States  the  pri- 
mary and  greater  citizenship,  including  all  the  less,  —  such  as 
citizenship  of  a  territory  or  the  District  of  Columbia,  —  and 
make  it  sufficient  of  itself  to  be  the  source,  support,  and  pro- 
tection of  all  the  civil  rights  of  the  freeman  ?  Would  these 
civil  rights  be  and  remain  the  privileges  and  immunities  of  the 
citizen  of  the  United  States,  and,  because  of  the  greater  citizen- 
ship of  the  nation,  be  above  the  reach  of  any  part  of  the  whole  ? 
Were  the  life,  liberty,  and  property  of  every  person  thus 
brought  within  the  supreme  protection  of  the  supreme  power, 
and  hence  made  inviolable  except  by  due  process  of  law,  to  be 
prescribed  by  the  appropriate  legislation  of  Congress  ?  and 
hence  were  the  states  commanded  not  to  deprive  any  person 
of  this  gift  of  the  supreme  power,  except  by  such  process  of 
law  ?  Was  Congress  authorized  to  provide  by  appropriate 
legislation  for  the  equal  protection  of  every  person,  and  for 
such  purpose  enact  laws  which  should  be  paramount  in  every 
jurisdiction  ?  and  therefore  was  it  that  the  states  were  for- 
bidden to  deny  to  any  person  within  their  respective  jurisdic- 
tions such  protection  ?  Were  there  to  be  a  major  and  a  minor 
jurisdiction,  and  should  the  minor  deny  no  right,  privilege, 
immunity,  protection,  form,  or  process  of  law  which  the  major 
jurisdiction  should  establish  ?  And  if  so,  should  the  nation 
make  every  person  secure  against  such  denial  by  the  state,  by 
"  appropriate  legislation  "  prescribing  the  laws,  touching  all 
these  matters,  which  laws  the  state,  and  upon  its  default,  the 
nation,  should  execute  everywhere  ?     Would  it  not  be  appro- 


I 


1 


CONSERVATIVE  CONSTRUCTION.  283 

priate  legislation  to  supersede  every  state  law  respecting  every 
one  of  these  matters,  define  by  a  national  code  their  nature 
and  extent,  and  prescribe  for  their  protection,  regulation,  and 
enjoyment  ?  Let  these  questions  be  answered  in  the  affirma- 
tive, and  the  states  would  cease  to  be  sovereignties,  and  would 
become  mere  territorial  or  geographical  divisions  of  the  nation. 
And  it  was  easy  to  answer  them  in  the  affirmative.  The 
Supreme  Court  had  held  with  respect  to  the  surrender  of  the 
fugitive  slave  that  the  constitutional  provision  that  no  law  of 
any  state  into  which  the  slave  might  escape  should  discharge 
him  from  slavery,  but  that  he  should  be  delivered  up,  was  not 
only  a  veto  of  such  state  law,  but  an  enabling  power  in  Con- 
gress to  make  the  necessary  laws  to  give  complete  effect  to  the 
master's  right  to  reclaim  his  slave.  Mr.  Justice  Harlan,  in  his 
dissenting  opinion  in  the  Civil  Rights  cases,^  said :  — 

"  I  insist  that  the  national  legislature  may,  without  transcending 
the  limits  of  the  Constitution,  do  for  human  liberty  and  the  fundamen- 
tal rights  of  American  citizenship  what  it  did,  with  the  sanction  of 
this  Court,  for  the  protection  of  slavery  and  the  rights  of  the  masters 
of  fugitive  slaves." 

Mr.  Justice  Swayne,  in  the  like  opinion  in  the  Slaughter- 
House  cases,2  said :  — 

"  These  amendments  are  all  consequences  of  the  late  civil  war. 
The  prejudices  and  apprehension  as  to  the  central  government  which 
prevailed  when  the  Constitution  was  adopted  were  dispelled  by  the 
light  of  experience.  The  public  mind  became  satisfied  that  there 
was  less  danger  of  tyranny  in  the  head  than  of  anarchy  and  tyranny 
in  the  members.  Before  the  war  ample  protection  was  given  against 
oppression  by  the  Union,  but  little  was  given  against  wrong  and  op- 
pression by  the  states.  That  want  was  intended  to  be  supplied  by 
this  amendment." 

In  the  exposition  of  these  amendments  the  Supreme  Court 
has  in  a  great  degree  disappointed  the  expectation  of  their 
framers.  Certainly,  the  Court  has  not  risen  to  the  summit 
level  of  the  revolutionary  reformers.  It  has  refused  to  give 
them  that  construction  which  would  draw  to  Congress  full 
power  of  affirmative  legislation  over  all  the  important  matters 
embraced  within  them.  It  has  discriminated  sharply  and 
1  109  U.  S.  26,  53.  2  16  Wallace,  128. 


284  CONSTITUTIONAL  HISTORY. 

narrowly  between  the  civil  rights,  privileges,  and  immunities 
which  are  the  gift  of  the  United  States  to  a  citizen  or  person, 
and  those  which  belong  to  him  by  universal  and  common  law 
in  his  capacity  as  a  freeman.  It  has  held  that  Congress  has 
the  right  by  appropriate  and  affirmative  legislation  to  protect 
and  to  confide  the  protection  to  the  jurisdiction  of  the  federal 
courts  of  all  the  rights,  privileges,  and  immunities  which  are 
^given  by  the  Constitution  of  the  United  States.  But  it  also 
has  held  that  while  the  Constitution  gives  to  the  negro  liberty 
and  citizenship  and  equal  civil  rights,  and  Congress  may  there- 
fore affirmatively  take  jurisdiction  of  them,  it  did  not  give  them 
to  the  white  man  ;  he  had  them  before  the  Constitution  was 
made,  and  they  therefore  are  not  its  gift,  and  therefore  the 
Fourteenth  Amendment  no  further  affects  them  than  to  give  to 
Congress  power  to  prevent  a  state,  not  the  citizens  of  a  state, 
from  denying  or  abridging  them ;  and  to  give  to  the  federal 
courts  power  to  correct  upon  appeal  any  denial  of  due  process 
of  law  and  the  equal  protection  of  the  laws. 

The  importance  of  the  decisions  of  the  Court  will  justify  a 
reference  to  some  of  them. 

The  first  important  decision  was  made  in  the  Slaughter- 
House  cases.i  An  act  of  the  State  of  Louisiana  conferred 
upon  certain  slaughter-house  companies  in  the  city  of  New 
Orleans  the  exclusive  privilege  of  carrying  on  the  business  of 
slaughtering  animals,  and  of  receiving  and  storing  the  ani- 
mals for  that  purpose.  Certain  butchers  brought  or  defended 
actions  upon  the  ground  that  their  privileges  and  immunities 
as  citizens  of  the  United  States  were  thus  abridged  by  the 
state,  and  that  they  were  denied  by  the  state  the  equal  pro- 
tection of  the  laws,  contrary  to  the  provisions  of  the  Four- 
teenth Amendment. 

The  state  court  upheld  the  state  law,  and  the  Supreme 
Court  of  the  United  States  affirmed  the  decision.  The  Su- 
preme Court  held  that  the  provision  that  "  no  state  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges 
and  immunities  of  citizens  of  the  United  States  "  does  not  vest 
in  the  United  States  the  power  to  deny  to  the  state  the  right 
to  make  and  enforce  a  law  to  abridge  the  privileges  of  a  cit- 

1  16  Wallace,  36. 


CONSERVATISM  OF  THE  COURT.  285 

izen  of  a  state  as  distinguished  from  the  privileges  of  a  citi- 
zen of  the  United  States.  That  it  only  secures  the  citizen  of 
the  United  States  from  infringement  by  the  state  of  such  priv- 
ileges and  immunities  as  he  derives  from  his  citizenship  of  the 
United  States,  or  under  its  Constitution  and  laws,  and  that 
the  privileges  and  immunities  secured  to  a  citizen  of  the  state 
by  virtue  of  his  state  citizenship  he  must  rely  upon  his  state 
to  protect. 

It  was  first  shown  that  the  State  of  Louisiana  had  by  virtue 
of  its  police  power  the  right  to  pass  the  act  unless  restrained 
by  the  federal  Constitution.  The  Court  then  proceeded  to 
show  that  the  privilege  to  slaughter  cattle  on  one's  own  prem- 
ises, and  the  right  to  an  immunity  from  a  monopoly  of  the 
business  in  others,  if  any  such  rights  exist,  are  rights  incident 
to  state  and  not  to  national  citizenship,  and  since  the  con- 
stitutional inhibition  is  against  a  state  infringement  of  the 
privileges  and  immunities  of  citizens  of  the  United  States,  the 
constitutional  provision  does  not  apply. 

In  elucidation  of  this  position  the  Court  assumed  that  the 
primary  object  of  the  Thirteenth,  Fourteenth,  and  Fifteenth 
amendments  was  to  reverse  the  previous  national  position  with 
respect  to  slavery  and  to  the  negro  race,  and  to  give  to  the 
negro  and  his  race  freedom  and  equality  of  rights  with  the 
white  man  without  discrimination.  The  Thirteenth  Amend- 
ment abolished  slavery  and  its  incidents  and  had  no  other 
purpose.  The  Fourteenth  Amendment  first  provides,  "  All 
persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  state  in  which  they  reside."  The  purpose  of  this 
provision  was  to  put  an  end  to  the  rule  asserted  in  the  Dred 
Scott  case,  that  a  man  of  African  descent,  whether  slave  or 
not,  was  not  and  could  not  be  a  citizen  of  a  state  or  of  the 
United  States.  The  minority  opinion  in  that  case  had  as- 
serted that  no  man  could  be  a  citizen  of  the  United  States 
except  through  his  citizenship  of  a  state.  This  new  constitu- 
tional provision  puts  aside  both  of  these  contentions,  and  de- 
clares all  persons  born  in  the  United  States  dnd  subject  to  its 
jurisdiction  to  be  citizens  of  the  United  States,  whether  they 
reside  in  a  state,  territory,  or  other  possession  thereof.      It 


286  CONSTITUTIONAL  HISTORY. 

also  gives  them  the  added  citizenship  of  the  state  in  which 
they  reside.  Hence  there  now  exist  two  kinds  of  citizenship, 
one  state,  the  other  national.  The  Court  then  proceeded  to 
show  that  the  citizenship  provision  of  the  Fourteenth  Amend- 
ment takes  nothing  from  the  civil  rights  of  state  citizens  as 
they  have  always  existed;  and  examining  those  rights  as 
they  existed  at  the  time  of  the  separation  of  the  states  from 
Great  Britain,  and  under  the  Articles  of  Confederation,  and 
under  the  Constitution  previous  to  the  Fourteenth  Amend- 
ment, and  as  they  had  been  declared  by  the  repeated  judg- 
ments of  the  courts,  held  that  the  civil  rights  of  a  citizen  of  a 
state  embrace  all  those  rights  which  are  fundamental  in  their 
character,  and  belong  to  the  citizens  of  all  free  governments, 
and  include  nearly  every  civil  right  which  belongs  to  the 
freeman  by  virtue  of  his  manhood  and  freedom,  and  for  the 
establishment  and  protection  of  which  governments  are  of 
right  instituted  among  men.  Further,  that  the  new  constitu- 
tional provision  does  not  subvert  in  this  respect  the  ancient 
sources  of  civil  rights,  nor  transfer  their  derivation  and  security 
from  the  state  to  the  nation.  The  Constitution  has  always 
contained  the  provision,  "  The  citizens  of  each  state  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  states ; "  but  this  does  not  create  any  privilege  and 
immunity  ;  it  simply  declares  that  the  citizen  of  one  state 
when  he  leaves  it  and  goes  into  another  shall  have  in  the  lat- 
ter state  all  the  privileges  and  immunities  which  such  state 
gives  to  its  own  citizens.  It  does  not  in  any  way  control  the 
action  of  any  state  in  giving  to  or  withholding  privileges  and 
immunities  from  its  own  citizens.  All  these  privileges,  what- 
ever they  are,  lie  outside  of  the  scope  or  power  of  the  federal 
government,  except  in  the  few  special  instances  in  which 
power  is  by  the  Constitution  denied  to  a  state,  such  as  the  pro- 
hibitions against  ex  post  facto  laws,  bills  of  attainder,  and  a 
few  others. 

If  the  recent  amendment  did  transfer  the  source  and  pro- 
tection of  all  these  civil  rights  —  the  inherent  attributes  of 
state  citizenship  —  from  the  state  to  the  nation,  then  Congress 
by  its  legislation  could  draw  to  itself  a  wide  and  illimitable 
jurisdiction  over  all  the  privileges  and  immunities  of  the  citi- 


( 


STATE  GOVERNMENTS  UPHELD.        287 

zens  of  the  states,  and  fetter  and  degrade  the  states  to  a  degree 
nearly  approximating  their  governmental  annihilation.      No 
such  purpose  could  be  imputed  to  the  Congress  which  pro-  . 
posed,  or  to  the  states  which  ratified,  the  amendments. 

In  response  to  the  claim  that  the  act  in  question  violated 
the  further  provision  of  the  amendment,  "Nor  shall  any 
state  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws,"  the  Court  said  the  evil  to  be  remedied 
by  this  clause  grew  out  of  the  existence  of  laws  in  some  of 
the  states  discriminating  with  gross  injustice  and  hardship 
against  the  negroes  as  a  class.  If  the  states  should  fail  to 
remove  these  discriminations,  Congress  could  enforce  the  pro- 
vision by  appropriate  legislation.  The  Court  added :  "  We 
doubt  very  much  whether  any  action  of  a  state  not  directed 
by  way  of  discrimination  against  the  negroes  as  a  class,  or  on 
account  of  their  race,  will  ever  be  held  to  come  within  the 
purview  of  this  provision." 

The  opinion  closed  with  a  strong  assertion  of  the  duty  of 
the  court  to  uphold  the  state  governments.  The  Court  re- 
marked :  — 

"  We  do  not  see  in  these  amendments  any  purpose  to  destroy  the 
main  features  of  the  general  system.  Under  the  pressure  of  all 
the  excited  feeling  growing  out  of  the  war,  our  statesmen  have  still 
believed  that  the  existence  of  the  states  with  powers  for  domestic 
and  local  government  including  the  regulation  of  civil  rights  —  the 
rights  of  persons  and  of  property  —  was  essential  to  the  perfect  work- 
ing of  our  complex  form  of  government,  though  they  have  thought 
proper  to  impose  additional  limitations  upon  the  states,  and  to  confer 
additional  power  on  that  of  the  nation." 

The  prevailing  opinion  was  prepared  by  Mr.  Justice  Miller. 
Chief  Justice  Chase  and  three  of  the  associate  judges  dissented. 

Mr.  Justice  Field  prepared  the  dissenting  opinion.  In  it 
he  attacked  the  foundation  of  the  prevailing  opinion,  namely, 
that  the  Fourteenth  Amendment  did  not  vest  in  the  national 
government  the  source  of  citizenship,  and  the  civil  rights  at- 
taching to  it.  He  referred  to  the  conflicting  opinions  which 
had  previously  prevailed  respecting  the  source  of  citizenship, 
and  the  persons  entitled  to  it,  and  then  said  :  — 

**  The  first  clause  of  the  Fourteenth  Amendment  changes  this  whole 
subject  and  removes  it  from  the  region  of  discussion  and  doubt.    It 


288/  CONSTITUTIONAL  HISTORY. 

recognizes  in  express  terms,  if  it  does  not  create,  citizens  of  the 
United  States,  and  it  makes  their  citizenship  dependent  upon  the 
place  of  their  birth  or  the  fact  of  their  adoption,  and  not  upon  the 
constitution  or  laws  of  any  state,  or  the  condition  of  their  ancestry. 
A  citizen  of  a  state  is  now  only  a  citizen  of  the  United  States  re- 
siding in  that  state.  The  fundamental  rights,  privileges,  and  im- 
munities which  belong  to  him  as  a  free  man  and  a  free  citizen  now 
belong  to  him  as  a  citizen  of  the  United  States,  and  one  not  depen- 
dent upon  his  citizenship  of  any  state.  .  .  .  They  do  not  derive  their 
existence  from  its  legislation  and  cannot  be  destroyed  by  its  power." 

This  being  true,  it  followed  that  no  state  could  abridge  or 
deny  to  any  citizen  of  the  United  States  any  privilege  or  im- 
munity which  he  enjoys  by  virtue  of  his  being  born  or  natu- 
ralized in  the  United  States  and  subject  to  its  jurisdiction. 

It  is  obvious  that  the  difference  between  the  positions  taken 
by  the  majority  and  the  minority  of  the  Court  is  great  and 
fundamental.  Under  the  opinion  of  the  majority  the  amend- 
ments fail  in  one  of  the  most  important  objects  intended  to 
be  accomplished  by  their  framers,  namely,  the  subversion  of 
the  basis  upon  which  the  most  extreme  positions  and  claims 
of  state-rights  rest.  It  is  obvious  that  if  the  civil  rights  of 
the  citizen  find  their  parent  and  protector  in  the  nation  in- 
stead of  the  state,  the  state  has  small  standing-room  in  w^hich 
to  develop  or  nurture  legal  antagonism  to  the  nation. 

Two  years  later,  Mrs.  Minor's  case  was  decided  by  the 
Court.  Mrs.  Minor  sued  the  registrar  of  voters  in  the  election 
district  in  Missouri  where  she  resided,  because  he  refused  to 
place  her  name  upon  the  list  of  persons  entitled  to  vote  at  the 
general  election  for  presidential  electors  and  other  officers. 
She  was  born  in  the  United  States,  was  subject  to  its  jurisdic- 
tion, and  was  qualified  to  vote,  unless  her  sex  was  a  disqualifi- 
cation. The  Constitution  of  Missouri  limited  the  right  to  vote 
to  male  citizens.  Her  argument  was  that  she  was  a  citizen 
of  the  United  States,  that  the  right  to  vote  was  one  of  the 
privileges  of  citizens  of  the  United  States,  having  the  proper 
state  residence ;  that  under  the  Fourteenth  Amendment  no 
state  could  abridge  her  privilege  ;  that  the  Constitution  of  the 
United  States  did  not  abridge  or  deny  it,  and  therefore  her 
right  to  vote  was  constitutionally  perfect. 


THE  RIGHT   OF   SUFFRAGE.  289 

The  Court,  Chief  Justice  Waite  delivering  its  unanimous 
opinion,  held  that  Mrs.  Minor  was  a  citizen  of  the  United 
States ;  that  the  Fourteenth  Amendment  was  not  necessary  to 
make  her  a  citizen  ;  that  as  one  of  "  the  people  "  of  the  United 
States,  born  of  citizen  parents  under  its  jurisdiction,  she  be- 
came a  citizen  ;  that  before  the  amendment  the  right  to  vote 
was  not  necessarily  one  of  the  privileges  or  immunities  of  citi- 
zens ;  that  the  amendment  added  nothing  to  these  privileges 
and  immunities,  it  simply  added  the  national  guarantee  of  pro- 
tection to  such  as  the  citizen  already  had.  The  Constitution 
does  not  define  the  privileges  and  immunities  of  citizens.  That 
definition  must  be  sought  elsewhere.  The  Court  would  not 
attempt  to  define  them,  but  held  that  suffrage  was  not  one  of 
them.  There  are  no  voters  of  the  United  States,  but  there 
are  of  the  states.  These  existed  in  the  several  states  before, 
the  Constitution  was  framed.  The  states  prescribed  their 
qualifications.  The  right  to  vote  was  usually  conferred  upon 
men,  but  not  upon  all  men.  Women  were  generally  ex- 
cluded. 

The  position  of  the  Court  that  the  Fourteenth  Amendment 
did  not  add  to  the  privileges  and  immunities  of  a  citizen,  but 
simply  furnished  an  additional  guarantee  to  those  he  already 
had,  is  not  practically  true,  however  it  may  be  theoretically. 
What  privileges  and  immunities  the  government  confers  upon 
its  citizen  may  be  inferred  by  considering  how  many  he  would 
enjoy,  if  the  government  had  and  exercised  the  will  and  power 
to  take  then!  away. 

Governments  are  instituted  among  men,  says  the  Declara- 
^^ion,  to  secure  among  other  things  the  inalienable  rights  of 
Irfe,  liberty,  and  the  pursuit  of  happiness.  The  implication 
isjthat  without  government  these  rights  are  insecure,  with 
pmper  government  secure.  Government,  then,  adds  the  secu- 
.nty,  part  of  which  necessarily  must  be  the  privilege  of  their 
enjoyment  and  exercise  under  adequate  protection,  and  im- 
munity from  any  governmental  invasion. 

The  Supreme  Court  held  in  Cooper  v,  Telfair,^  that  an  act 
of  the  legislature  of  the  State  of  Georgia,  passed  before  the 
adoption  of  the  federal  Constitution,  banishing  the  plaintiff 

1  4  Dallas,  14. 
19 


290  CONSTITUTIONAL  HISTORY. 

and  confiscating  his  property,  was  a  valid  exercise  of  the  power 
of  the  state.  The  privilege  to  enjoy  his  liberty  and  property 
with  immunity  from  governmental  deprivation  of  them  ex- 
cept upon  due  process  of  law  was  denied  him,  because  there 
was  then  no  such  constitutional  guarantee  in  the  State  of 
Georgia.  Practically  the  personal  rights  of  liberty  and  prop- 
erty are  realized  through  the  government. 

In  1875,  Cruikshank's  case  ^  came  before  the  Court.  Cruik- 
shank  had  been  indicted  and  convicted,  with  others,  in  the 
Circuit  Court  of  the  United  States,  for  conspiring  to  deprive 
certain  negroes  of  their  right  as  citizens  to  vote,  and  of  their 
right  to  enjoy  certain  other  privileges  alleged  to  be  secured 
to  them  by  the  Constitution  and  laws  of  the  United  States. 
The  indictment  was  loosely  framed,  and  was  held  to  be  insuf- 
ficient to  sustain  any  conviction.  But  the  Court,  in  its  opin- 
ion, held  that  the  right  to  vote  was  a  right  derived  from  the 
state,  and  conferred  by  it  upon  its  citizens,  and  was  not  held 
by  virtue  of  citizenship  of  the  United  States  ;  and  hence  a 
conspiracy  to  deprive  a  citizen  of  that  right  was  a  violation 
of  state  privileges,  not  those  of  the  United  States,  and  hence 
no  case  was  presented  for  federal  jurisdiction  or  interference. 
If,  however,  the  Court  suggested,  the  defendants  had  been 
charged  with  a  conspiracy  to  deprive  the  parties  of  their  right 
to  vote  on  account  of  their  race  or  color,  then  the  charge 
would  have  been  one  of  which  the  United  States  has  juris- 
diction, since  the  right  to  exemption  from  discrimination  in 
the  right  of  suffrage  on  such  account  comes  from  the  United 
States. 

No  rights,  the  Court  held,  can  be  acquired  under  the  gov- 
ernment of  the  United  States  except  such  as  it  has  authority 
to  grant  or  secure  ;  all  other  rights  are  left  to  the  protection 
of  the  states.  The  indictment,  among  other  things,  charged 
the  defendants  with  the  intent  in  their  conspiracy  to  deprive 
the  negroes  named  "  of  their  lawful  right  and  privilege  to 
assemble  peaceably  together  for  a  peaceful  and  lawful  pur- 
pose." 

Such  a  right,  the  Court  held,  antedated  the  Constitution. 
It  is  found  wherever  civilization  exists,  and  is  therefore  not 

1  92  U.  S.  Rep.  542. 


DISTINCTIONS   AGAINST   NATIONAL  POWER.        291 

conferred  by  the  Constitution.  As  a  universal  right,  Con- 
gress was  by  the  Constitution  enjoined  from  abridging  it. 
The  people  must  look  for  their  protection  in  its  enjoyment  to 
the  states.  The  same  was  said  of  the  right  "  to  bear  arms 
for  a  lawful  purpose/'  and  of  "  the  rights  of  life  and  personal 
liberty."  The  Fourteenth  Amendment,  by  prohibiting  a  state 
from  depriving  any  person  of  life,  liberty,  or  property,  with- 
out due  process  of  law,  adds  nothing  to  the  rights  of  one  citi- 
zen against  another.  It  simply  adds  a  guarantee  against  any 
encroachment  by  the  states  upon  these  rights.  The  encroach- 
ment by  citizens  is  not  an  encroachment  by  the  state.  The 
same  is  true  of  the  provision  prohibiting  a  state  from  denying 
"  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws."  Equality  of  rights  is  a  principle  of  republicanism. 
The  duty  to  protect  the  citizen  in  this  respect  was  originally 
assumed  by  the  states,  and  still  remains  there. 

It  seemed  to  many  of  the  friends  of  the  Fourteenth  Amend- 
ment, in  the  light  of  these  decisions,  that  the  amendment, 
instead  of  being  destructive  of  the  states'  control  over  the 
privileges  and  immunities  of  the  citizen,  proved  to  be  the 
instrumentality  by  which  state-rights  were  reestablished,  and 
that  the  power  in  the  states  and  the  lack  of  power  in  the 
United  States  were  rendered  clearer  than  ever  before. 

Very  slight  comfort  was  given  by  Reese's  case.^  There  the 
Court  held  that  rights  and  immunities  created  by  the  Consti- 
tution of  the  United  States,  or  dependent  upon  it,  can  be  pro- 
tected by  "  appropriate  legislation  "  on  the  part  of  Congress. 
Thus  the  Fifteenth  Amendment,  although  it  does  not  confer 
the  right  of  suffrage,  does  confer  exemption  from  discrimina- 
tion in  the  exercise  of  it  on  account  of  race,  color,  or  previous 
condition  of  servitude.  If  Congress  would  confine  its  legisla- 
tion to  measures  to  prevent  such  discrimination,  it  would  be 
appropriate  legislation,  but  as  in  the  case  under  consideration 
such  legislation  was  not  so  confined,  it  was  inappropriate,  and 
therefore  void. 

In  1879  several  cases  came  before  the  Court  involving  the 
Fourteenth   Amendment.     They  are  reported  in  100   U.   S. 
303-422.     In  Strauder's  case  a  negro  was  indicted,  tried,  and 
92  U.  S.  Eep.  214. 


292  CONSTITUTIONAL  HISTORY. 

convicted  for  murder  in  the  state  court  of  West  Virginia. 
By  the  law  of  that  state  jurors  could  only  be  selected  from 
white  male  citizens.  Because  of  this  exclusion  of  colored  citi- 
zens from  the  jury,  the  defendant,  in  proper  form  before  trial, 
asked  to  have  his  case  removed  from  the  state  court  to  the 
Circuit  Court  of  the  United  States,  pursuant  to  an  act  of  Con- 
gress providing  for  such  removal.  His  request  was  denied  by 
the  state  court.  The  Supreme  Court  held  that  it  ought  to 
have  been  granted,  because  the  state  had  by  its  jury  law  dis- 
criminated against  the  equal  right  of  colored  men  to  serve  upon 
juries,  and  therefore  against  the  right  of  the  defendant  to  have 
his  jury  selected  without  discrimination  against  him  or  them 
on  account  of  race  or  color.  The  Fourteenth  Amendment  was 
intended  to  secure  the  colored  man  against  such  discrimina- 
tion, and  the  act  of  Congress  providing  for  the  removal  of  the 
cause  was  intended  to  afford  the  means,  and  to  point  out  the 
method,  of  obtaining  such  security. 

In  Rives'  case  two  colored  men  were  indicted  for  murder  in 
the  state  court  of  Virginia.  The  jury  law  of  that  state  does 
not  discriminate  against  colored  citizens.  Nevertheless  only 
white  men  were  placed  on  the  jury  list  for  the  court  in  which 
the  defendants  were  to  be  tried.  They  asked  that  a  jury  be 
selected,  one  third  of  which  should  be  colored  men.  The 
motion  was  denied.  The  Supreme  Court  of  the  United  States 
held  that  as  the  law  did  not  discriminate  against  them,  they 
had  not  presented  any  just  ground  for  the  interposition  of  the 
Court. 

In  Ex  parte  Virginia  the  county  judge  of  a  county  in  that 
state  was  charged  by  law  with  the  duty  of  selecting  jurors  for 
the  state  court  held  in  that  county.  He  was  indicted  in  the 
United  States  Circuit  Court  for  a  violation  of  the  jury  law,  in 
that  he  had  excluded  from  the  jury  citizens  of  color,  although 
they  were  possessed  of  all  the  qualifications  required  by  law ; 
that  such  exclusion  was  made  by  him  because  of  their  race, 
color,  and   previous  condition  of  servitude. 

Having  been  arrested  upon  the  indictment,  he  applied  to 
the  Supreme  Court  of  the  United  States  for  a  writ  of  habeas 
corpus^  in  order  to  be  discharged  from  custody.  The  State 
of  Virginia  united  in  his  application,  alleging  that  she  was 
unlawfully  deprived  of  the  services  of  one  of  her  oflBcers. 


THE  CIVIL  RIGHTS   CASES.  293 

Congress  had  passed  an  act  providing  that  if  any  officer 
charged  with  the  duty  of  selecting  jurors  should  exclude  any 
person  from  such  service  upon  account  of  his  race,  color,  or 
previous  condition  of  servitude,  he  should  be  guilty  of  a  mis- 
demeanor. The  Court  held  that  the  act  of  the  county  judge 
was  the  act  of  the  state,  and  therefore  the  restriction  imposed 
by  the  Fourteenth  Amendment  against  the  denial  by  the  state 
to  any  person  of  the  equal  protection  of  the  laws  was  violated 
by  the  act  of  the  county  judge. 

In  1875  Congress  passed  an  act  providing  that  all  persons 
within  the  jurisdiction  of  the  United  States  should  be  entitled 
to  the  full  and  equal  enjoyment  of  the  privileges  of  inns,  pub- 
lic conveyances,  and  places  of  public  amusement,  subject  only 
to  such  conditions  as  should  apply  alike  to  persons  of  every 
race  and  color,  and  providing  for  the  punishment  of  violations 
of  the  law. 

The  Supreme  Court  of  the  United  States  in  the  Civil 
Rights  cases  ^  held  this  act  to  be  unconstitutional ;  that  the 
denial  of  equal  accommodations  and  privileges  in  inns,  public 
conveyances,  and  places  of  amusement  is  no  badge  of  slavery 
or  involuntary  servitude,  and  therefore  is  not  within  the 
meaning  of  the  Thirteenth  Amendment.  That  the  Four- 
teenth Amendment  is  prohibitory  upon  the  states  and  not 
upon  individuals,  and  that  the  power  of  Congress  to  enforce 
the  amendment  by  appropriate  legislation  does  not  extend 
to  legislation  prescribing  the  rights  of  the  parties  themselves 
between  each  other,  but  only  to  the  correction  and  prohibition 
of  legislation  and  action  on  the  part  of  the  state,  abridging  or 
denying  the  equal  protection  of  such  laws  as  the  state  may 
make  for  any  of  its  people.  The  state  had  made  no  law 
denying  to  colored  men  equal  accommodations  and  privileges' 
with  white  men  in  inns,  public  conveyances,  or  places  of 
amusement,  and  therefore  the  state  had  not  done  these  negroes 
wrong ;  it  had  not  denied  them  equal  protection  of  the  laws. 
The  right  to  equal  accommodations  and  privileges  in  these 
places  is  not  any  privilege  or  immunity  given  by  the  Consti- 
tution to  citizens  of  the  United  States,  and  therefore  is  not 
within  the  power  of  the  United  States  to  enforce  by  "  appro- 

1  109  U.  S.  3. 


294  CONSTITUTIONAL  HISTORY. 

priate  legislation."  If  the  state  should  assume  to  make  a  law- 
denying  the  black  man  any  privileges  allowed  to  the  white 
man,  it  would  be  appropriate  legislation  for  Congress  to  over- 
ride, nullify,  or  vacate  such  a  discriminating  law.  If  the 
state  courts  should  enforce  state  laws  which  denied  equal  pro- 
tection to  any  person,  then  the  Suprerfte  Court  by  the  exer- 
cise of  its  appellate  jurisdiction  might  correct  the  error. 

Yarborough's  case  ^  and  Waddell's  case  ^  point  out  the  dis- 
tinction between  the  power  of  Congress  to  legislate  repecting 
the  general  and  fundamental  rights  of  the  citizen  or  individ- 
ual and  those  rights  which  have  their  exclusive  origin  under 
the  Constitution  or  laws  of  the  United  States.  In  the  one 
case  Congress  may  only  correct  or  nullify  the  wrongful  law 
or  action  of  the  state,  in  the  other  it  may  pass  the  laws  need- 
ful to  protect  the  right. 

In  Spier's  case,  in  1887,^  a  question  of  the  utmost  impor- 
tance was  presented  to  the  Court,  which,  however,  it  did  not 
find  it  necessary  to  decide.  It  was  contended  in  argument 
that  the  first  ten  amendments  of  the  Constitution  do  confer 
privileges  and  immunities  upon  citizens  of  the  United  States, 
and  therefore  no  state  can  abridge  any  of  them;  that  al- 
though these  ten  amendments  were  originally  only  restraints 
upon  the  federal  power,  yet  inasmuch  as  they  declare  and 
recognize  rights  of  persons,  these  rights  are  theirs  as  citizens 
of  the  United  States,  and  now  are  made  secure  by  the  Four- 
teenth Amendment  against  any  denial  or  abiidgment  by  the 
states.  The  first  ten  amendments,  it  was  contended,  confer 
privileges  and  immunities  upon  the  people  and  citizens  of  the 
United  States.  Thus,  the  right  to  be  secure  in  their  persons, 
houses,  papers,  and  effects  against  unreasonable  search  and 
seizure ;  the  immunity  from  the  quartering  of  soldiers  in  their 
houses,  from  self-accusation,  from  trial  for  crime  without  in- 
dictment, from  a  second  trial  for  the  same  offence,  from  ex- 
cessive bail  and  fines,  from  cruel  and  unusual  punishments, 
from  taking  of  private  property  for  public  use  without  just 
compensation.  True,  these  provisions  are  also  inserted  in 
most  of  the  state  constitutions,  but  if  they  are  national  securi- 
ties to  the  national  citizen,  the    federal  court  must,  it  was 

1  110  U.  S.  651.  a  112  U.  S.  76.  ^  123  U.  S.  131. 


NATIONAL  PRIVILEGES  FEW.  295 

urged,  review  the  judgment  of  the  state  court  denying  the 
protection  of  any  one  of  the  provisions. 

The  First  Amendment  confers  these  important  privileges 
and  immunities :  "  Congress  shall  make  no  law  respecting  an 
establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof,  or  abridging  the  freedom  of  speech  or  of  the  press,  or 
the  right  of  the  people  peaceably  to  assemble,  and  to  petition 
to  the  government  for  a  redress  of  grievances."  But  this  ac- 
cording to  the  Court  is  no  inhibition  of  state  action,  with  the 
single  exception  of  the  right  to  petition  the  government  for  a 
redress  of  grievances;  the  latter  is  an  attribute  of  national 
citizenship. 

Many  of  the  states  passed  laws  prohibiting  the  freedom  of 
speech  and  of  the  press  respecting  slavery.  President  Jack- 
son recommended  Congress  to  pass  a  law  to  prevent  the  cir- 
culation through  the  mails  of  papers  and  publications  hostile 
to  slavery,  but  Congress  was  restrained  by  this  constitutional 
provision.  Many  members  of  Congress,  however,  contended 
that  as  the  state  laws  in  violation  of  the  freedom  of  the  press 
were  not  prohibited  by  the  Constitution,  Congress  had  power 
to  pass  such  laws  as  would  give  effect  to  the  state  laws.  The 
states  passed  laws  prohibiting  the  free  exercise  of  religious 
worship  by  the  slaves,  and  their  peaceable  assemblage  even 
for  worship  except  under  restraints. 

The  Supreme  Court  in  1844  held  in  Permoli's  case  ^  that 
*'  the  Constitution  makes  no  provision  for  protecting  the  citi- 
zens of  the  respective  states  in  their  religious  liberties ;  this  is 
left  to  the  state  constitutions  and  laws ;  nor  is  there  any  in- 
hibition imposed  by  the  Constitution  of  the  United  States  in 
this  respect  on  the  states."  It  can  scarcely  be  doubted  that 
this  defect  in  the  national  Constitution  was  intended  to  be 
corrected,  but  such  is  not  the  doctrine  of  the  Court. 

The  first  ten  amendments  restricted  the  national  power  to 
abridge  or  deny  any  privilege  or  immunity  specified  in  them. 
To  some  extent,  therefore,  these  amendments  were  equivalent 
to  a  grant  of  such  privileges  and  immunities ;  an  imperfect 
grant,  it  is  true,  because  it  was  only  a  grant  of  national  non- 
interference ;  the  power  in  the  states  to  invade  them  remained. 

1  3  Howard,  589. 


296 


CONSTITUTIONAL  HISTORY. 


By  construing  the  Fourteenth  Amendment  so  as  to  impose  the 
same  restriction  upon  the  states  as  previously  existed  upon 
the  nation,  the  grant  would  be  made  complete.  Of  course 
two  narrow  decisions  can  be  made  —  and  the  Supreme  Court 
has  practically  made  them :  First,  Non-interference  by  the 
nation  is  no  grant  of  anything  ;  second.  The  provision  of  the 
Fourteenth  Amendment  inhibiting  a  state  from  abridging  the 
privileges  and  immunities  of  citizens  of  the  United  States 
means  no  more  with  respect  to  the  privileges  and  immunities 
mentioned  in  the  first  ten  amendments  than  that  the  states 
shall  not  by  law  abridge  the  obligation  of  the  United  States 
to  let  them  alone.  Obviously  the  true  meaning  is  that  the 
states  shall  be  as  powerless  as  the  United  States  to  deny  or 
abridge  them. 

The  Spies  case  contains  an  intimation  that  the  debate  upon 
the  subject  is  not  yet  closed.  Manifestly  it  ought  to  be  kept 
open  until  it  can  be  more  clearly  seen  whether  it  is  really 
true  that  the  privileges  and  immunities  of  the  white  man, 
which  the  nation  is  forbidden  by  the  Constitution  to  abridge, 
may,  notwithstanding  the  Fourteenth  Amendment,  be  abridged 
by  the  state. 

Is  it  true  that  national  citizenship  of  itself  has  no  attributes 
of  any  practical  value  ?  Is  there  nothing  more  of  it  than  the 
paltry  show  of  theoretical  advantages  enumerated  in. the  pre- 
vailing opinion  in  the  Slaughter- House  cases  ? 

Is  it  true  that  the  higher  the  source  and  the  more  inaliena- 
ble the  rights  of  man,  the  less  they  are  within  the  protection 
afforded  by  national  citizenship  and  the  national  Constitu- 
tion, and  the  more  they  are  exposed  to  invasion  by  the  state? 

One  provision  of  the  Fourteenth  Amendment  is  of  far- 
reaching  effect.  If  a  state  by  its  law  deprives  "  any  person  of 
life,  liberty,  or  property  without  due  process  of  law,"  the  wrong 
can  be  corrected  by  the  Supreme  Court  of  the  United  States, 
upon  appeal  from  the  judgment  of  the  state  court  enforcing 
the  state  law.  *'Due  process  of  law"  is  not  defined  in  the 
Constitution.  It  means  the  same  as  "  law  of  the  land "  m 
Magna  Charta.  This  process  in  the  states  is  regulated  by  the 
laws  of  the  state.^  But  unless  the  state  regulates  it  to  con- 
1  Walker  v.  Sauvinet,  92  U.  S.  91. 


DUE  PROCESS  OF  LAW.  297 

form  to  its  ancient  meaning,  it  is  not  "  due  process,"  but  a 
perversion  thereof.^ 

Due  process  of  law  implies  that  the  person  who  is  sought  to 
be  deprived  of  his  life,  liberty,  or  property  shall  have  an  op- 
portunity to  dispute  the  charge  or  claim  made  against  him, 
and  the  allegations  upon  which  it  is  founded,  and  that  the 
material  matters  disputed  shall  be  fairly  inquired  of,  and  the 
case  decided  as  the  law  and  its  merits  require.  To  accomplish 
this  there  must  be  a  court  or  tribunal,  regular  allegations,  op- 
portunity to  answer,  and  a  trial  according  to  some  settled 
mode  of  judicial  proceeding. 

If  the  state  provides  due  process  of  law,  an  erroneous  de- 
cision of  the  state  court  in  the  administration  of  justice  under 
it  does  not  violate  the  Fourteenth  Amendment.  There  must 
be  such  a  defect  in  the  state  law  as  deprives  the  trial,  or  pro- 
ceeding, of  the  requisites  of  due  process  of  law.^  So  construed, 
the  amendment,  however,  gives  to  the  Supreme  Court  an  en- 
larged jurisdiction  over  the  administration  of  justice  in  the 
states,  respecting  life,  liberty,  and  property. 

This  jurisdiction,  taken  in  connection  with  the  liberal  pro- 
visions of  the  acts  of  Congress  providing  for  the  removal  of 
causes  from  the  state  courts  to  the  courts  of  the  United  States, 
in  cases  arising  under  the  Constitution  or  laws  of  the  United 
States,  secures  to  the  citizen,  in  a  very  high  degree,  national 
protection  against  the  injustice  of  a  state.  It  also  tends  to 
place  the  state  above  the  desire  to  commit  that  injustice  which 
the  federal  power  may  correct.  Thus  the  Fourteenth  Amend- 
ment does  not  destroy  state  rights  and  powers.  It  secures 
them.  If  they  deny  equality  of  rights,  or  due  process  of  law, 
it  corrects  them.  It  supersedes  them,  if  necessary,  for  the  pro- 
tection of  rights  conferred  by  the  Constitution  upon  the  negro ; 
or,  if  necessary,  for  the  freedom  and  fairness  of  the  election  of 
representatives  in  Congress.  It  interferes  for  the  protection 
of  officers  acting  under  federal  authority. 

The  national  and  state  systems  remain  intact,  parts  of  an 

undivided  whole,  the  greater  not  encroaching  upon  the  less, 

but  supervising  its  action,  in  cases  where  the  horizon  of  the 

state  ought  to  be  as  broad  as  that  of  the  nation. 

1  Murray's  Lessee  v.  Hoboken  Land  Co.  18  How.  272.  2  us  U.  S.  194. 


298  CONSTITUTIONAL  HISTORY. 

The  seceding  states  have  found  in  the  Supreme  Court  their 
champion  and  preserver.  The  judgment  of  the  people,  ma- 
tured by  time  and  modified  as  the  generation  which  partici- 
pated in  the  rebellion  passes  away,  indorses  the  action  of  the 
Court.  The  Court  which  in  the  earlier  years  of  the  govern- 
ment developed  the  Constitution,  and  made  it  adequate  to  the 
existence  and  maintenance  of  the  nation  in  its  struggle  against 
state  opposition  and  supremacy,  in  the  later  years  has  pre- 
served the  states  against  the  superior  strength  and  undue  su- 
premacy of  the  nation.  First,  it  made  a  place  for  the  nation, 
and  second,  it  saved  the  places  of  the  states. 

Chief  Justice  Waite,  in  Cruikshank's  case,  reiterated  the 
old  doctrine,  which  it  is  probable  will  never  be  shaken :  — 

"  The  government  of  the  United  States  is  to  some  extent  a  govern- 
ment of  the  states  in  their  political  capacity.  It  is  also  for  certain 
purposes  a  government  of  the  people.  Its  powers  are  limited  in 
number  but  not  in  degree.  Within  the  scope  of  its  powers  as  enu- 
merated and  defined,  it  is  supreme  and  above  the  states  ;  but  beyond  it 
has  no  existence.  ...  It  can  neither  grant  nor  secure  to  its  citizens 
any  right  or  privilege  not  expressly  or  by  implication  placed  under  its 
jurisdiction.  .  .  .  All  that  are  not  so  granted  or  secured  are  left 
under  the  protection  of  the  states." 

The  language  of  the  Court  in  New  York  v.  Miln,i  has  been 
often  repeated. 

"  A  state  has  the  same  undeniable  and  unlimited  jurisdiction  over 
all  persons  and  things  within  its  territorial  limits  as  any  foreign  nation, 
where  that  jurisdiction  is  not  surrendered  or  restrained  by  the  Consti- 
tution of  the  United  States;  that  by  virtue  of  this,  it  is  not  only  the 
right  but  the  bounden  and  solemn  duty  of  a  state  to  advance  the  safety, 
happiness,  and  prosperity  of  its  people,  and  to  provide  for  its  general 
welfare  by  any  and  every  act  of  legislation  which  it  may  deem  to  be 
conducive  to  these  ends,  when  the  power  over  the  particular  subject 
or  the  manner  of  its  exercise  is  not  surrendered  or  restrained  by  the 
Constitution  and  laws  of  the  United  States." 

With  a  brief  reference  to  a  few  of  the  provisions  of  the 
Constitution  which  have  elicited  important  expositions  of  the 
powers  of  the  nation  and  the  states,  the  subject  of  the  in- 
fluence of  the  Court  upon  our  constitutional  system  may  be 
dismissed. 

Ml  Peters,  139. 


REGULATION   OF  COMMERCE.  299 

First  in  importance  may  be  mentioned  the  power  in  Con- 
gress "  to  regulate  commerce  with  foreign  nations  and  among 
the  several  states."  From  these  few  words  a  body  of  laws 
has  been  developed  by  the  decisions  of  the  Court,  vitally  af- 
fecting commerce.  Commerce  includes  navigation,  water  and 
land  transportation  of  property  and  passengers,  intercourse, 
and  necessarily  the  instruments  of  traffic  such  as  ships  and 
railroads,  and  telegraphic  lines  on  post  roads.  Whatever 
affects  the  regulation  of  commerce  with  foreign  nations  or 
among  the  states  is  committed  to  Congress.  Whatever  ob- 
structs, taxes,  or  burdens  such  commerce,  or  discriminates  in 
its  rates  or  charges,  is  to  some  extent  a  regulation,  and  thus 
within  the  control  of  Congress.  The  power  is  a  national  one, 
and  the  states  have  no  voice  or  power  in  the  matter.  They 
can  regulate  commerce  which  begins  in  a  state  and  never 
passes  its  boundary,  but  all  commerce  which  passes  state  lines 
is  within  the  exclusive  control  of  Congress.  Unless  Congress 
otherwise  declares,  all  interstate  commerce  is  free.  Many 
cases  have  arisen  in  which  the  legislation  of  states  has  been 
declared  void,  because  either  a  direct  or  indirect  encroach- 
ment upon  the  exclusive  power  of  Congress.  The  decisions 
are  not  entirely  reconcilable  with  each  other;  this,  because 
the  judges  in  these  as  in  other  cases  cannot  always  agree 
respecting  the  application  of  the  Constitution  to  peculiar 
cases,  and  because  in  a  body  of  nine  judges  the  majority  of 
the  quorum  which  controls  the  decision  to-day  may  have  been 
the  dissenting  minority  in  the  decision  which  was  pronounced 
yesterday  by  a  full  bench.  Side  by  side  with  the  doctrine  of 
the  exclusive  power  in  Congress  to  regulate  commerce  have 
grown  up  two  exceptions  to  the  power  or  qualifications  of  it  : 
first,  where  the  particular  matter  of  commercial  regulation  is 
from  its  nature  of  local  operation  ;  such  as  the  improvement  of 
harbors,  their  pilotage,  the  erection  of  bridges,  wharves,  piers, 
and  docks,  the  establishment  of  beacons  and  buoys,  Congress 
allows  the  state  to  act,  until  it  takes  the  matter  in  hand  it- 
self;  the  local  authorities  better  understand  the  local  needs 
and  can  better  provide  for  them.  This  exception  comes  from 
the  grace  of  Congress.  The  second  is,  the  state  has  a  police 
power  which  is  one  of  its  reserved  powers  and  rights,  and  is 


300  CONSTITUTIONAL  HISTORY. 

/' 

therefore  superior  to  congressional  invasion.  This  is  a  power 
to  guard  the  health,  safety,  good  order,  and  morals  of  the 
community,  and  to  afford  protection  to  property.  The  full 
discussion  of  this  important  topic  with  its  exceptions  would 
require  a  treatise  of  considerable  magnitude. 

The  practical  effect  is  to  establish  free  trade  between  the 
states  under  leave  of  the  nation,  with  local  helps  and  police 
supervision  on  the  part  of  every  state. 

Next  in  importance  is  the  provision  in  the  Constitution 
that  no  state  shall  make  any  law  *'  impairing  the  obligation  of 
contracts."  More  attempts  have  been  made  by  the  states  to 
evade  this  provision  than  any  other  —  perhaps  than  all  others 
in  the  Constitution.  Under  the  broad  interpretation  given 
to  it  by  the  Court,  it  has  proved  to  be  a  mighty  bulwark 
against  public  and  private  plunder.  Upon  the  binding  obli- 
gations of  contracts  repose  the  rewards  of  labor,  the  title  to 
property,  and  general  public  confidence.  The  temptation  to 
incur  debt  is  generally  present ;  to  repudiate  it  when  its  bur- 
den is  oppressive  is  a  common  form  of  dishonesty.  The 
laborers  who  worked  eleven  hours  in  the  vineyard  wanted  to 
^  repudiate  their  contract.  They  "  murmured  against  the  good 
man  of  the  house,  saying,  these  last  have  worked  but  one  hour, 
and  thou  hast  made  them  equal  unto  us  who  have  borne  the 
burden  and  heat  of  the  day.  But  he  answered  one  of  them 
and  said.  Friend,  I  do  thee  no  wrong,  didst  thou  not  agree 
with  me  for  a  penny  ?  " 

The  state  courts  have  always  professed  respect  for  the  pro- 
vision, but  have  frequently  attempted  to  relax  its  rigor,  or 
evade  or  deny  its  application.  The  Supreme  Court  has  gone 
to  the  utmost  limit  of  permissible  construction  to  uphold  it, 
and  thus  has  done  an  immense  labor  in  enforcing  common 
honesty.  It  has  been  baffled,  however,  in  its  attempts  to  pre- 
vent state  repudiation  by  the  non-suability  of  a  state  by  a 
private  party.  Universal  suffrage  is  not  j-et  sufficiently  sen- 
sitive in  honor  to  hold  a  state  to  the  full  discharge  of  a  public 
debt  which  is  so  oppressive  that  the  government  cannot  dis- 
guise its  burden,  or  conceal  its  exactions  from  the  voter.  An 
amendment  to  the  Constitution  in  this  respect  is  suggested  in 
a  previous  lecture. 


UNITED  STATES  NOTES  A  LEGAL  TENDER.   301 

The  Constitution  denies  to  a  state  the  power  to  coin  money, 
to  emit  bills  of  credit,  to  make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts.  This  was  an  additional 
check  against  state  dishonesty.  The  State  of  Missouri  issued 
bills  of  credit  in  1821.  The  Supreme  Court  held  them  to  be 
void,  and  thus,  it  is  curious  to  notice,  enabled  the  state  to 
escape  from  the  obligation  of  her  contract  to  redeem  them. 
But  the  particular  evil  was  more  than  compensated  by  the 
general  good. 

No  power  is  expressly  conferred  by  the  Constitution  upon 
the  nation  to  make  anything  but  gold  and  silver  a  legal  tender. 
Nevertheless,  the  Supreme  Court  has  held  that  the  power  ex- 
ists ;  that  Congress  has  the  power  to  borrow  money,  and  there- 
fore the  power  to  issue  its  notes  in  the  form  most  convenient 
and  useful ;  that  Congress  is  not  forbidden  by  the  Constitu- 
tion to  make  the  notes  a  legal  tender,  and  does  have  the 
power  to  make  such  enactments  respecting  them  as  will  make 
them  most  conducive  to  the  public  welfare ;  that  its  judgment 
that  the  quality  of  legal  tender  impressed  upon  these  notes  is 
most  conducive  to  the  public  welfare  is  its  judgment  upon  a 
political  question,  and  thus  within  its  discretion,  and  therefore 
permissible. 

Something  is  said  by  the  Court  to  the  effect  that  the  power 
to  impress  notes  with  the  quality  of  legal  tender  is  a  power 
universally  understood  to  belong  to  sovereignty,  and  that  Con- 
gress is  the  legislature  of  a  sovereign  nation.  These  remarks 
were  not  essential  to  the  demonstration.  That  is  complete 
upon  the  premises  assumed,  without  reference  to  sovereign 
powers.  Nevertheless,  much  dissent  has  been  expressed  with 
respect  to  this  reference  to  the  powers  of  sovereignty.  The 
limited  number  of  powers  which  the  nation  possesses  are  sov- 
ereign. The  delegated  powers  are  complete.  If  the  nation 
has  the  power  to  declare  its  notes  a  legal  tender,  that  power 
is  by  the  Constitution  a  sovereign  power  because  there  is  no 
■  higher  power  residing  elsewhere.  There  is  no  declaration  by 
the  Court  that,  in  addition  to  the  powers  conferred  by  the 
Constitution,  the  nation  also  has  other  powers  as  the  attri- 
butes of  its  sovereignty.  The  Court  has  always  disclaimed 
the  existence  of  such  powers,  and  probably  always  will. 


302 


CONSTITUTIONAL  HISTORY. 


The  Court  has  uniformly  held  that  the  decision  of  the  exec- 
utive and  legislative  departments,  with  reference  to  the  polit- 
ical matters  committed  to  their  authority  and  discretion,  will 
not  be  reviewed  by  the  Court.  This  negative  decision  is  prac- 
tically a  decision  upholding  the  action  of  these  departments, 
and  thus  as  decisive  as  if  the  Court  actually  reviewed  and 
affirmed  their  action.     The  question  is  put  at  rest. 

In  matters  of  taxation  both  nation  and  state  are  held  to 
have  concurrent  powers,  except  with  regard  to  imports  and 
foreign  and  interstate  commerce,  but  neither  government  will 
tax  a  governmental  instrumentality  of  the  other ;  for  the 
power  to  tax  is  the  power  to  destroy  by  increasing  the  weight 
of  the  tax. 

The  United  States  will  not  punish  crimes  except  those 
declared  by  its  own  statutes  ;  this,  for  the  reason  that  it  can 
make  no  law  except  within  the  legislative  powers  granted  to 
it,  and  hence  it  can  have  no  unwritten  laws,  and  therefore 
none  to  be  violated.  Under  the  recent  amendments  the  Su- 
preme Court  will  allow,  however,  a  criminal  case  to  be  re- 
moved from  a  state  to  a  federal  court,  when  the  defence  is  a 
justification  under  the  laws  of  the  United  States ;  this,  be- 
cause the  United  States  will  protect  whatever  rights  it  con- 
fers. 

The  more  our  constitutional  history  is  examined,  the  stronger 
will  be  the  conviction  that  the  Supreme  Court  has  been  indis- 
pensable to  the  success  of  our  federal  system  of  government. 


LECTURE  XIII. 

SOME  OF  THE  CAUSES   OF  THE   STABILITY  AND   SUCCESS 
OF   OUK   DUAL   SYSTEM  OF   GOVERNMENT. 

We  assume  that  our  system  of  cooperative  national  and 
state  governments  is  thus  far  a  practical  success,  and  that  it 
gives  promise  of  long  continuance.  It  will  be  useful,  therefore, 
to  ascertain  some  of  the  principal  features  which  give  it  sta- 
bility and  excellence.  How  is  it  that  this  republican  govern- 
ment is  strong  enough  to  perpetuate  itself?  And  why  is  it 
that  the  power  and  means  necessary  to  maintain  it  do  not 
oppress  the  people  or  restrict  their  liberties  ?  The  questions 
are  comprehensive,  and  any  answer  must  be  far  from  com- 
plete. It  would  be  easy  for  the  pessimist  to  answer  and  say 
that  the  government  is  neither  stable  nor  excellent,  and  that 
it  is  gradually  advancing  toward  tyranny  and  oppression,  and 
must  sooner  or  later  be  overthrown  by  the  rebellion  of  the 
people  against  its  usurped  authority,  or  be  preserved  by  the 
strong  hand  of  military  and  police  power.  We  reject  such 
gloomy  predictions,  confessing,  however,  that  the  croaker  of 
evil  often  suggests  dangers  which  prudence  should  take  care 
to  remove  or  provide  against,  but  believing  that  the  necessary 
prudence  exists. 

Government  is  a  necessity.  It  is  necessary  to  regulate  the 
association  of  men  with  each  other,  to  prevent  the  invasion  of 
their  liberties  and  rights,  and  to  promote  that  good  which 
society  is  willing  to  do  for  its  members. 

Government  in  its  simplest  and  best  form  is  the  elaboration 
and  enforcement  of  those  natural  laws  of  reason  and  justice 
which  every  man  in  some  degree  instinctively  recognizes  as 
due  from  him  to  his  associates,  and  from  them  to  himself. 
To  secure  uniform  and  universal  obedience  to  these  laws,  the 
power  to  declare  and  enforce  them  must  be  lodged  somewhere. 
Convenience  and  better  service  are  promoted  by  the  division 

UNIVEKSITIT  ) 


304  CONSTITUTIONAL  HISTORY. 

of  labor  and  its  assignment  according  to  special  aptitudes. 
The  founders  of  government  usually  have  some  special  apti- 
tudes for  it.  It  is  a  practical  matter.  The  right  of  this  or 
that  man  or  body  of  men  to  bear  rule  over  the  whole  is  not 
much  debated  in  the  beginning  ;  it  usually  comes  about  in  a 
very  practical  way  ;  the  philosopher  examines  and  discusses 
it  later,  and  deduces  his  precepts  of  political  science ;  these 
are  interesting  and  useful,  but  rarely  become  weighty  until 
the  people  become  wiser  and  greater,  and  seek  to  reform 
the  methods  which  practical  governors  established. 

Individuals  pass  away,  but  the  people  remain ;  and  if  they 
advance  in  civilization  the  government  will  conform  them  to 
its  genius,  or  they  will  conform  it  to  theirs ;  that  is  to  say,  in 
the  long  course  of  time.  But  meantime  great  injustice  may 
be  done,  sometimes  by  the  government  and  sometimes  by  the 
people.  Governments  have  imposed  a  vast  amount  of  suffer- 
ing upon  the  people. 

The  possession  of  power  is  too  often  followed  by  its  abuse. 
This  abuse  must  result  in  the  abasement  of  the  people,  or 
their  resistance  to  the  government  itself,  unless,  indeed,  the 
people  possess  the  power  to  reform  the  government,  and  in- 
telligence and  unity  enough  to  exercise  such  power  aright. 
^  If  reason  and  justice  always  presided  over  the  exercise  of 
power,  governments  would  be  simple  and  probably  very  much 
alike.  But  the  ignorance  and  weakness  of  the  many  invite 
the  direction  of  the  few  and  submit  to  it.  Successful  ambi- 
tion gains  power,  and  then  seeks  to  perpetuate  it.  It  ad- 
vances the  false  pretext  of  hereditary  and  divine  right  to  it, 
and  thus  has  imposed  for  ages  upon  the  minds  of  men.  "  To 
contest  the  power  of  kings  is  to  dispute  the  power  of  God," 
said  James  I.,  and  statesmen,  bishops,  and  philosophers  said 
Amen !  Wise  and  great  nations  still  tolerate  the  imposition 
of  hereditary  right,  and  uphold  it  in  the  interest  of  established 
peace,  security,  and  good  order.  Theoretically,  it  would  seem 
that  good  government  might  be  easily  established,  since  every 
one  ought  to  desire  it,  and  contribute  to  it;  but  selfishness, 
ignorance,  and  passion  are  constant  disturbing  forces,  and 
what  is  simple  in  theory  is  difficult  in  practice.  Strictly 
speaking  the  state  can  confer  no  rights ;  it  should  recognize 


PRIMARY  PURPOSE  OF  GOVERNMENT.  305 

and  protect  them.  Every  man  is  born  with  the  rights  of  a 
human  being;  he  lives  among  his  fellow-men,  and  hence  the 
state  measures  his  rights  with  respect  to  the  like  rights  of 
others.  Every  man  has  the  right,  equal  with  the  right  of 
every  other  man,  to  make  the  best  possible  use  of  his  powers 
and  opportunities  to  promote  his  own  welfare  and  happiness, 
within  the  limits  of  non-intrusion  upon  the  like  right  of 
others.  The  state  should  protect  this  right,  charging  only 
the  expense,  in  the  form  of  taxation,  necessary  to  do  it. 

If  the  state  confers  privileges  and  immunities  upon  some  of 
its  people  at  the  expense  of  the  rest,  the  state  is  unjust.  But 
rights  imply  and  impose  duties.  The  principal  civil  duty  is 
that  every  man  should  enjoy  his  own  rights  without  intrusion 
upon  the  rights  of  another  ;  in  other  words,  he  should  do  him 
no  wrong.  Government  should  be  the  agency  by  which  and 
through  which  the  powers  of  all  the  members  of  the  state  are 
united  to  protect  these  rights  and  enjoin  this  duty  with  re- 
spect to  every  member  of  the  state.  If  wisely  constituted 
and  administered,  the  individual  gains  immensely.  He  sur- 
renders no  right  or  liberty  which  he  ought  to  retain,  and  he 
gains  the  protection  of  the  organized  power  of  all  the  others. 

Government  completes  its  primary  purpose  when  it  protects 
the  rights  and  liberties  of  its  people,  and  prevents  or  punishes 
wrong-doing  by  any  one  to  the  injury  of  any  other.  The  in- 
dividual members  of  the  state  are  thus  left  to  do  the  best  they 
can  for  themselves.  But  many  things  are  proper  to  be  done, 
and  can  only  be  effectively  done  by  cooperation.  The  ten- 
dency of  the  people  in  modern  states  is  to  make  the  state  the 
master  and  compeller  of  the  proper  cooperation  to  accomplish 
purposes  supposed  to  be  for  the  common  welfare.  Education, 
the  public  health,  the  protection  of  children,  the  care  of  the 
poor  and  the  insane,  the  construction  of  roads  and  bridges, 
seem  to  be  proper  objects  of  governmental  concern  and  direc- 
tion. But  with  few  exceptions  like  those  above  indicated,  the 
theory  that  the  state  is  wiser  than  the  people,  and  therefore 
ought  to  act  as  their  parent  or  guardian,  is  a  dangerous  one, 
and  in  practice  results  in  their  abasement,  and  in  governmental 
abuse  and  tyranny.  It  naturally  results  in  the  extension  of 
privileges  and  benefits  to  the  few  at  the  expense  of  the  many ; 

20 


306  CONSTITUTIONAL  HISTORY. 

and  the  practice  once  begun  is  the  parent  of  inveterate  and 
multiplying  abuses.  The  people  should  never  ask  the  state  to 
help  them  in  any  measures  where  they  can  help  themselves, 
and  it  is  better  to  forego  a  supposed  benefit  than  to  initiate 
a  measure  which  concedes  to  the  state  a  new  pretext  to  abuse 
its  power. 

The  framers  of  our  national  Constitution  were  wisely  jeal- 
ous of  the  tendencies  of  power  to  abuse  and  oppression.  The 
people  of  that  day  debated  long  and  earnestly  over  the  ques- 
tion whether  it  was  not  better  to  bear  the  ills  of  anarchy  than 
incur  the  dangers  of  centralized  power.  Good  government 
they  recognized  to  be  the  greatest  of  human  blessings,  but  they 
greatly  feared  that  in  seeking  to  make  a  good  one,  they  would 
really  incur  the  risk  of  getting  a  very  bad  one. 

Government  must  be  clothed  with  authority ;  the  people 
desire  liberty ;  authority  should  protect  liberty  ;  but  authority 
in  the  government  is  the  surrender  by  the  people  of  some  con- 
trol over  their  liberty.  Society  is  always  liable  to  the  strug- 
gle between  liberty  and  authority :  the  tendency  of  liberty  is 
toward  license ;  the  tendency  of  authority  toward  despotism. 
To  allot  to  each  its  proper  measure,  so  that  the  scale  shall  be 
and  remain  justly  and  evenly  poised,  is  the  problem  political 
science  seeks  to  solve.  It  is  a  science  in  the  interests  of  peace 
and  the  common  welfare.  Revolutions  are  the  usual  read just- 
ers  of  the  gross  disproportions  in  the  shares  allotted  to  liberty 
on  the  one  hand,  and  to  government  on  the  other,  or  captured 
by  the  one  from  the  other.  But  when  the  sword  is  thrown 
into  the  balance,  the  scale  usually  preponderates  on  the  side 
of  the  stronger  ;  if  with  authority,  liberty  is  crushed  ;  if  with 
liberty,  anarchy  reigns,  until  weakened  by  its  own  excesses 
and  divisions  authority  strides  in  and  saves  the  people  from 
themselves  by  crushing  down  liberty  once  more. 

There  is  a  frightful  array  of  historical  evidence  against  the 
peace  and  permanency  of  republics.  It  is  a  wearisome  story 
of  the  excesses  of  liberty,  the  tyranny  of  majorities,  the  insur- 
rection of  minorities,  the  struggle  for  power,  the  cruelty  of 
vengeance,  the  mob  unchained  —  and  then  the  dictator,  the 
man  on  horseback,  or  subjection  to  foreign  power. 

Men  cannot  retain  their  liberties  unless  they  can  be  pro- 


I 


LIBERTY  AND   AUTHORITY.  307 

tected  or  protect  themselves  from  the  consequences  of  their 
own  passions.  Human  passions  cannot  be  removed :  they 
may  be  governed.  In  moments  of  peace  and  calmness,  it  may 
be  possible  to  erect  a  shelter  from  their  storm  —  a  bulwark 
against  their  violence. 

Good  citizens,  under  a  sense  of  outrage,  not  unfrequently 
resort  to  violence.  The  first  inspiration  of  the  mob  usually 
comes  from  generous  impulse,  but  its  heat  warps  its  purpose, 
and  turns  it  into  vicious  and  violent  courses.  It  destroys  it- 
self in  its  effort  to  destroy  others ;  or,  weakened  by  its  disor- 
der, becomes  the  easy  victim  of  authority. 

The  simple  and  successful  governments  in  the  states  gave 
the  framers  of  our  Constitution  great  encouragement.  Local 
self-governments  were  successfully  established.  But  so  long 
as  they  remained  divided  in  counsel  and  action,  they  lacked 
the  strength  necessary  for  their  safety,  and  the  harmony  es- 
sential to  the  general  welfare.  "  Join,  or  die,"  had  been  the 
watchword  which  led  to  the  union  against  Great  Britain.  "  A 
more  perfect  union"  was  the  object  of  the  framers  of  the  Con- 
stitution. The  greatest  obstacle  to  the  framing  of  a  more  per- 
fect union  was  state  sovereignty,  or  the  jealous  care  with  which 
local  self-government  was  cherished.  The  greater  the  power 
of  the  national  government,  the  greater  was  the  need  of  care 
to  guard  the  liberties  of  the  people  and  the  rights  of  the  states. 

It  was  not  necessary  to  construct  the  whole  system  of  gov- 
ernment from  its  foundations.  Local  self-governments  were 
already  established,  and  were  apparently  adequate  for  local 
purposes.  They  constituted  the  foundations  upon  which  the 
national  system  was  to  be  erected,  and  models  to  aid  in  shap- 
ing the  new  structure.  Nevertheless,  the  hostile  and  disturb- 
ing forces  in  society  and  among  the  states  had  to  be  regulated 
and  balanced.  The  counterpoises  between  liberty  and  author- 
ity had  to  be  adjusted,  so  that  however  violent  the  oscillations, 
they  must  always  tend  toward  repose  in  equilibrium. 

Two  propositions  of  Mr.  Madison,  as  stated  by  him  in  the 
fifty-first  number  of  "  The  Federalist,"  —  first,  the  government 
must  control  the  governed  ;  second,  it  must  be  obliged  to  con- 
trol itself,  —  touch  or  reveal  the  secret  of  all  proper  govern- 
ment.   In  order  to  control  the  governed  the  government  must 


308  CONSTITUTIONAL  HISTORY. 

possess  all  the  powers  necessary  for  the  purpose.  It  must  be 
able  to  maintain  and  secure  its  own  existence,  and  must  be 
able  to  compel  obedience.  "  A  government,"  says  Mr.  Ham- 
ilton, **  ouglit  to  contain  in  itself  every  power  requisite  to  the 
full  accomplishment  of  the  objects  committed  to  its  care,  and 
to  the  complete  execution  of  the  trusts  for  which  it  is  respon- 
sible ;  free  from  every  other  control  but  a  regard  to  the  pub- 
lic good  and  to  the  sense  of  the  people."  ^ 

The  framers  of  the  jConstitution  recognized  the  principle 
that  whatever  powers  should  be  conferred  upon  the  United 
States  must  be  full  and  complete,  otherwise  there  might  be 
such  a  lack  of  unity,  energy,  and  authority  as  would  in  some 
important  crisis  prove  fatal.  The  powers  conferred  by  our 
Constitution  are  few  and  soon  counted,  but  thej'^  are  complete 
in  themselves  and  ample  for  the  purpose  intended.  These 
powers  are  self-executing  in  some  cases  and  need  no  further 
laws  ;  in  other  cases  the  laws  regulate  and  guard  their  exercise  ; 
in  some  cases,  however,  the  powers  may  be  held  in  abeyance 
by  the  failure  of  the  laws  to  provide  for  their  exercise ;  but 
the  laws  cannot  abrogate  the  powers  themselves;  however 
long  in  abeyance,  a  future  legislature  may  provide  for  their 
exercise.  Power  should  be  exercised  in  conformity  to  law, 
but  where  the  exercise  of  the  power  is  defined  and  regulated 
by  the  Constitution,  no  further  law  is  necessary. 

Starting  with  the  assumption  that  whenever  a  power  is  con- 
ferred by  the  Constitution  to  do  anything,  ever}?^  power  neces- 
sary to  do  that  thing  is  conferred,  —  that  is,  supreme  power 
with  respect  to  that  thing,  —  the  practical  and  important  ob- 
ject to  be  attained  is  to  protect  the  people  from  the  abuse  of 
this  power.  Jefferson,  and  most  of  the  leaders  of  the  party 
which  he  founded,  did  not  believe  it  was  practicable  to  protect 
them,  and  they  therefore  the  more  readily  denied  that  the 
Constitution  conferred  such  supreme  powers  ;  they  asserted 
that  the  powers  conferred  were  limited  in  their  scope,  and 
could  only  be  exercised  to  the  extent  that  the  law  permitted. 
Thus  the  safety  of  the  people  consisted,  first,  in  making  the 
fewest  laws  possible  ;  and,  second,  in  carefully  restraining  by 
the  laws  themselves  the  power  to  be  employed  under  them, 
i  Federalist,  No.  31. 


SEPARATION  OF  POWERS.  309 

The  policy  suggested  was  cautious  and  in  most  cases  would  be 
wise  ;  but  it  is  obvious  that  if  the  government  does  not  have 
the  full  right  to  execute  its  delegated  powers,  a  residuum  of 
power  exists  elsewhere,  and  that  residuum  may  prove  to  be 
large  and  strong  enough  to  nullify  the  power  of  the  govern- 
ment, and  leave  it  in  the  same  condition  as  if  it  had  no  power 
at  all. 

While  it  is  said  that  this  is  a  government  by  the  people,  the 
statement  is  only  partly  true.  The  people  do  not  exercise  the 
powers  of  the  government ;  they  elect  officers  to  do  this.  The 
people  in  voting  for  persons  to  fill  the  elective  offices  do  not 
thereby  exercise  any  of  the  functions  of  officers.  They  do  in- 
deed exercise  that  function  of  government  which  consists  in 
choosing  officers,  but  every  other  function  they  commit  to  the 
officers  chosen.  During  their  terras  of  office  the  people  have 
no  direct  control  over  the  officers.  In  a  representative  gov- 
ernment of  vast  extent  it  is  difficult  to  provide  otherwise. 

An  examination  of  our  system  of  government  in  the  light  of 
its  practical  operation  will  bring  to  view  the  following  securi- 
ties for  the  good  conduct  of  those  intrusted  with  power,  and 
safegards  against  the  encroachment  of  authority  upon  liberty : 

First.  There  is  not  sufficient  power  lodged  in  any  one  man 
or  body  of  men  to  enable  him  or  them  to  oppress  the  people. 
This  result  is  attained  by  the  division  of  the  great  powers  of 
government,  namely,  the  executive,  the  legislative,  and  the 
judicial,  among  separate  groups  of  officials.  If  these  were  all 
vested  in  one  man  or  body  of  men,  then  such  man  or  body  of 
men  might  usurp,  if  they  should  not  possess,  all  the  powers 
necessary  to  oppress  the  people.  But  when  they  are  separated, 
so  that  those  belonging  to  one  group  are  given  to  one  class  of 
officers,  and  those  belonging  to  another  group  to  another  class, 
and  those  of  the  remaining  group  to  a  third  class,  then  the 
totality  of  the  powers  of  the  government  is  so  scattered  or  dis- 
tributed that  too  few  of  them  unite  in  any  one  man  or  body 
of  men  to  enable  him  or  them  to  tyrannize  over  the  people. 

Second.  The  powers  which  are  the  most  dangerous  if 
abused,  or  most  liable  to  abuse,  are  committed  to  officers  with 
short  terms  of  office.  The  interest  of  the  people  is  stimulated 
and  refreshed  by  the  frequent  return  to  them  of  the  duty  and 


310  CONSTITUTIONAL  HISTORY. 

privilege  of  election  ;  the  conduct  of  the  officers  is  the  more 
carefully  watched  by  those  who  desire  to  eject  them,  or  to 
obtain  their  positions.  The  officer  will  have  neither  the  power 
nor  length  of  service  sufficient  to  enable  him  to  oppress  the 
people,  but  will  naturally  be  ambitious  to  render  useful  ser- 
vice. 

Third.  The  national  powers  are  distinctly  separated  from 
those  of  the  state.  This  prevents  control  of  the  state  govern- 
ments by  the  nation,  and  deprives  the  nation  of  power  to  op- 
press the  states,  or  make  any  state  the  instrument  of  oppres- 
sion. The  moment  the  nation  passes  out  of  its  appointed 
sphere  of  action,  it  is  utterly  powerless.  If  it  attempts  to 
usurp  power  in  a  state  it  is  a  wrong-doer,  and  is  instantly 
treated  as  such.  Besides,  power  is  usually  so  decentralized  in 
the  states  that  it  has  no  single  official  master.  The  law  is  the 
superior.  The  governor  is  chosen  by  the  people,  and  his  du- 
ties are  prescribed  by  law.  The  same  is  true  of  the  inferior 
officers.  They  are  chosen  by  the  people  of  their  districts,  and 
the  governor  is  not  their  commanding  officer,  nor  do  they  look 
to  him  to  prescribe  their  duties.  They  are  the  servants  of 
the  law,  and  if  they  fail  in  their  duties  the  law  prescribes  the 
penalties,  which  the  courts  may  enforce.  These  inferior  offi- 
cers owe  their  positions  to  the  people,  and  naturall}'  recognize 
their  responsibility  to  the  people  and  to  the  law.  It  follows 
that  in  the  states,  official  power  cannot  be  centralized,  and 
therefore  cannot  well  be  made  the  servant  of  any  one  master. 
If  the  President  were  to  seek  for  it  with  the  view  to  its  con- 
trol, it  would  forever  elude  his  search.  Even  if  the  governor 
of  the  state  should  seek  to  grasp  it,  the  system  of  decentrali- 
zation would  baffle  him. 

The  national  power,  limited  to  national  purposes,  is  cen- 
tralized, and  safely  and  properly  so.  The  President  is  the 
only  executive  officer  elected  by  the  people.  All  the  others 
are  either  directly  or  indirectly  appointed  by  him.  The  na- 
tion must  be  united  and  harmonious  in  executive  action  and 
complete  in  its  powers,  both  as  respects  foreign  nations  and  its 
home  affairs.  It  would  be  unwise  and  impracticable  to  at- 
tempt to  elect  by  the  people  of  the  nation  ambassadors  to 
foreign  governments :  they  represent  the  government  as  ad- 


SEPARATION   OF  POWERS.  311 

ministered,  and  must  be  subject  to  its  direction,  and  there- 
fore to  its  appointment  and  removal.  It  would  be  equally 
impracticable  and  unwise  to  elect  by  the  people  such  officers 
as  postmasters  and  revenue  collectors.  They  could  not  well 
be  elected  by  the  people  at  large  ;  and  if  they  should  be 
elected  by  the  people  of  districts,  they  would  feel  more  re- 
sponsibility to  such  people  than  to  the  administration,  and 
hence  might  thwart  the  national  scheme.  The  same  may  be 
said  of  the  other  officers  in  the  civil  service  of  the  nation. 
The  centralization  of  national  power  secures  unity,  harmony, 
and  efficiency  at  home  and  abroad. 

The  possible  danger  of  this  centralized  national  system  is 
removed  or  guarded  against  by  the  separation  of  the  national 
from  the  state  powers.  It  cannot  be  dangerous  where  it  can- 
not extend.  The  President  of  the  United  States  has  no  offi- 
cial superiority  over  the  governor  of  a  state.  Congress  can- 
not by  law  require  a  governor  to  do  anything.  The  Supreme 
Court  has  decided  that  Congress  may  request  but  not  com- 
mand the  governor  to  comply  with  the  constitutional  pro- 
vision for  the  surrender  of  the  criminal  who  flees  from  the 
state  where  he  committed  crime  into  another  state.^  Thus, 
the  greater  part  of  the  power  of  the  nation  resides  in  the 
states,  and  cannot  be  organized  or  controlled  at  all  by  the 
nation,  except  in  cases  of  invasion,  insurrection,  or  rebellion, 
and  then  only  for  the  purpose  of  keeping  the  peace.  It  is 
under  the  direction  of  the  governors  of  the  states  only  for  the 
like  purpose.  The  law  and  the  courts  define  and  declare  the 
duties  and  obligations  of  citizens  and  of  inferior  executive 
officers.  Public  officers  are  powerless  unless  the  law  is  on 
their  side,  and  they  are  liable  to  be  haled  before  the  courts  for 
an  abuse  of  their  official  trust,  or  for  action  in  excess  of  it. 

Fourth.  These  separate  powers  committed  to  separate  offi- 
cers are  so  coordinated  that  the  proper  action  of  every  de- 
partment is  usually  necessary  to  the  successful  working  of  the 
government.  Every  department,  therefore,  is  stimulated  to 
perform  its  assigned  duty,  so  that  no  fault  may  attach  to  it. 
Every  department  is  in  some  sense  a  detective  of  the  defaults 
or  abuses  of  the  others. 

1  Kentucky  v.  Deanison,  24  How.  66. 


312  CONSTITUTIONAL  HISTORY. 

Fifth.  The  power  of  amendment  of  the  Constitution  exists, 
properly  guarded  to  prevent  hasty  use,  but  adequate  to  the 
correction  of  real  defects  or  abuses. 

Sixth.  The  participation  of  the  people  in  the  government, 
the  publicity  of  its  action,  freedom  of  discussion,  frequent 
elections,  manhood  suffrage,  the  virtue  and  intelligence  of  the 
people,  their  love  of  liberty  and  justice,  their  love  of  th^r 
country  and  its  institutions,  are  constant  forces  tending  not 
only  to  strengthen  and  perpetuate  the  government,  but  to 
bring  it  and  hold  it  to  a  very  high  degree  of  excellence. 
This  general  classification  of  the  features  of  our  system,  tend- 
ing towards  stability  and  excellence,  will  admit  of  extended 
specialization  and  illustration.  Secondary  cooperating  factors 
are  numerous.  We  can  only  glance  hastily  at  the  most  im- 
portant. 

The  national  legislature  has  its  limited  range  of  legislative 
powers;  the  state  legislatures  have  the  rest.  Thirty-eight 
state  legislatures  keep  watch  and  ward  against  national  en- 
croachment. The  Supreme  Court  of  the  United  States  is  the 
tribunal  which  nullifies  the  action  of  either  national  or  state 
legislature  infringing  upon  the  other.  As  each  legislature 
has  a  defined  scope  of  powers  which  the  other  must  not  use 
or  invade,  the  national  and  state  legislatures,  instead  of  cooper- 
ating to  oppress  the  people,  may  be  relied  upon  to  watch  each 
other,  and  to  expose  and  counteract  any  exercise  of  power 
which  is  dangerous  to  the  people  or  their  liberties. 

Again,  the  legislatures  do  not  enforce  any  of  the  laws  they 
make.  That  function  belongs  to  the  other  departments. 
There  is  often  a  display  of  power  and  consequence  in  the 
execution  of  a  law  which  does  not  attach  to  its  enactment. 
The  legislatures  give  to  the  executive  officers  that  consequence 
and  power ;  they  do  not  retain  it  themselves.  Their  jealousy 
of  the  power  they  confer  tends  to  make  them  cautious  in  con- 
ferring it.  It  is  less  probable  that  the  legislature  will  make 
a  bad  law  for  the  other  departments  to  enforce,  than  it  would 
if  it  enforced  it  itself.  It  is  more  inclined  to  impose  limits 
upon  the  action  of  the  other  departments  than  to  grant  ex- 
tensions of  power.  Each  department,  possessing  its  own 
group  of  powers,  instead  of  combining  with  the  other  depart- 


ONE  POWER  CHECKS  ANOTHER.  313 

ments  to  oppress  the  people,  becomes  a  wholesome  check  upon 
such  oppression.  The  tendency  of  the  legislature  usually  is 
to  encroach  upon  the  powers  of  the  other  departments.  It 
cannot  exercise  them,  but  it  can  in  many  ways  limit  and  di- 
rect their  exercise.  These  departments  are  naturally  watch- 
ful of  their  own  powers,  and  they  resist  in  every  practicable 
way  the  legislative  encroachment.  The  Constitution  is  the 
limit  of  legislative  power.  It  protects  very  fully  the  execu- 
tive powers,  and  to  some  extent  the  judicial  powers,  from  un- 
authorized encroachment.  By  forming  separate  departments 
with  separate  powers,  and  giving  to  the  executive  and  legisla- 
tive officers  short  terms  of  service,  the  danger  of  their  col- 
lusion to  subvert  the  government  or  oppress  the  people  is 
reduced  to  a  minimum ;  because  the  temptation  is  reduced. 
On  the  other  hand,  the  ambition  of  the  officer  to  deserve  well 
of  his  country  and  of  the  people  is  stimulated ;  he  desires  to 
retain  his  office,  or  pass  from  it  to  a  higher  one ;  he  confines 
himself  to  his  own  functions  and  becomes  better  qualified  to 
discharge  them  ;  better  qualified  to  guard  the  line  which  sepa- 
rates his  department  from  others ;  more  disposed  to  protect 
the  system  which  gives  him  position  and  emolument ;  more 
disposed  to  shun  the  evil  practices  which  promise  failure,  dis- 
grace, or  retirement. 

With  respect  to  the  legislative  department  additional  secu- 
rity results  from  the  two  chambers,  unlike  in  their  origin  and 
duration  of  power,  and  inspired  by  the  like  jealousy  of  each 
other.  Treason  in  one  house  could  not  survive  its  detec- 
tion in  the  other.  "  The  great  security,"  says  Mr.  Madison, 
"  against  the  gradual  concentration  of  the  several  powers  in 
the  same  department,  consists  in  giving  to  those  who  admin- 
ister each  department  the  necessary  constitutional  means  and 
personal  motives  to  resist  the  encroachments  of  others.  The 
provision  for  defence  must  in  this  as  in  all  other  cases  be  made 
commensurate  to  the  danger  of  attack.  Ambition  must  be 
made  to  counteract  ambition." 

A  republic,  says  Montesquieu,  depends  upon  virtue.  But, 
as  remarked  by  Mr.  Madison,  "  our  pride  and  vanity  attach 
us  to  a  form  of  government  which  favors  our  pretensions." 
But  pride  and  vanity  may  be  the  very  forces  which  move  us 


814  CONSTITUTIONAL  HISTORY. 

to  virtue.  How  far  selfishness  degrades  an  action  otherwise 
noble  and  virtuous,  we  need  not  pause  to  discuss.  A  just  ac- 
tion excludes  the  occasion  for  imputing  a  bad  motive.  We 
honor  the  man  whose  life  is  pure  and  honest,  though  his  fun- 
damental maxim  may  be  that  "  honesty  is  the  best  policy.'* 
Montesquieu  is  right  in  saying  that  a  republic  depends  upon 
virtue,  meaning  virtuous  action.  Mr.  Madison,  securing  all 
the  aid  virtue  can  render,  would  also  obtain  from  lower  motives 
the  same  result  which  Montesquieu  ascribes  to  virtuous  mo- 
tives. A  government  which  permits  every  citizen  to  take 
equal  part  with  every  other;  which  permits  the  humblest  to 
aspire  to  the  highest  place  and  sometimes  to  gain  it;  must 
strongly  appeal  to  the  pride  and  vanity  of  all  that  vast  mass 
of  people  who,  if  the  government  should  not  open  the  way  for 
them  to  participate  in  its  functions,  would  never  think  of  open- 
ing it  themselves.  It  is  certainly  better  that  they  should  be 
for  the  government  than  against  it. 

Mr.  Madison's  idea  was  that  since  human  infirmities  exist, 
they  should  be  used  so  as  to  do  the  most  good,  and  thus  pro- 
duce the  least  evil.  He  would  use  one  human  infirmity  to 
counteract  another,  as  power  against  power,  ambition  against 
ambition,  avarice  against  avarice ;  he  would  place  envy  and 
jealousy  as  spies  upon  dishonesty  and  corruption,  one  party 
against  another,  the  outs  against  the  ins.  Government  does 
not  create  men  ;  it  must  deal  with  them  as  they  are  ;  and  since 
they  are  possessed  of  the  weaknesses  incident  to  humanity, 
which,  if  not  properly  employed,  restrained,  and  regulated, 
might  end  in  the  ruin  of  us  all,  there  is  no  choice  but  to  do 
the  best  you  can  ;  you  must  resort  to  the  wisest  expedients; 
you  are  not  responsible  for  your  lack  of  angels ;  you  are  re- 
sponsible for  putting  men  to  the  best  use  they  are  fitted  for. 
Compelled  to  make  a  choice  of  evils,  it  is  your  duty  to  choose 
the  least.  But  in  this  adjustment  and  balancing  of  destructive 
forces  the  virtues  are  cultivated.  Both  public  and  private 
good  are  made  incitements  to  virtue,  and  punishment  and  dis- 
grace deterrents  to  vice. 

The  framers  of  the  Constitution  assumed  the  existence  of 
two  qualities  or  conditions  :  the  virtue  of  the  people,  and  the 
ambition  and  selfish  interest  of  their  leaders.     With  respect 


THE   WILL   OF  THE  PEOPLE.  315 

to  the  people,  their  desire  is  for  their  individual  good,  and  for 
the  general  good.  On  every  abstract  question  of  right  their 
impulses  are  right.  Upon  the  application  of  the  abstract  right 
to  the  concrete  fact  which  they  see  and  feel  and  are  affected 
by,  they  are  swayed  by  their  passions,  prejudices,  and  inter- 
est ;  their  generous  impulses  are  often  abused,  their  better 
judgments  misled ;  but  their  ultimate  tendency  is  right. 

If  we  were  to  form  our  opinions  of  our  own  national  virtue 
from  studying  the  calendar  of  crimes  committed,  the  instances 
of  corruption,  defalcation,  fraud,  dishonesty,  petulance,  hypoc- 
risy, ignorance,  humbug,  and  incapacity,  from  which  we  are 
never  exempt,  and  against  which  it  is  prudent  to  be  constantly 
on  our  guard,  we  probably  should  conclude  that  the  republic 
lacks  the  virtue  essential  to  its  permanence.  But  we  should 
err.  We  should  mistake  the  few  for  the  many,  the  exceptions 
for  the  rule,  the  parasites  upon  the  body  politic  for  the  body 
itself.  The  people  will  not  continue  to  support  men  for  office 
whom  they  believe  to  be  wrong ;  and  if  in  fact  wrong,  they 
will  ultimately  find  it  out.  The  candidate  for  their  suffrages 
must  represent  their  will  and  affect  the  virtues  they  possess,  if 
he  does  not  himself  share  them. 

The  aggregate  will  of  the  people  is  usually  better  than  the 
average  of  the  intelligence  of  the  individuals  composing  the 
people,  because  they  accept  the  judgment  of  men  wiser  than 
themselves. 

Free  discussion  is  the  bulwark  of  liberty.  Give  truth  a 
chance  to  be  heard,  and  in  the  long  run  it  will  make  headway. 
Whatever  makes  against  liberty  is  false  in  principle,  or  in  ap- 
plication, and  in  free  discussion  truth  will  contend  against  it 
and  finally  overcome  it.  In  a  country  of  great  territorial  ex- 
tent like  ours,  liable  to  have  erroneous  opinions  and  theories 
spring  up  anywhere,  free  discussion  is  a  most  wholesome  cor- 
rective. The  truth  hunts  down  the  error,  driving  it  from 
place  to  place  and  localizing  it  more  and  more,  if  it  does  not 
wholly  exterminate  it.  If  error  must  exist,  it  is  better  to 
confine  it  to  as  few,  and  small,  and  widely  separated  districts 
as  possible. 

Indeed,  the  great  extent  and  population  of  our  country  have 
proved  to  a  degree  not  foreseen  by  the  majority  of  the  framers 


316  CONSTITUTIONAL  HISTORY. 

of  the  Constitution  to  be  a  safeguard  of  our  free  institutions. 
History  and  political  philosophy  seemed  to  show  that  a  re- 
publican government  was  unfitted  for  a  country  having  a 
large  extent  of  territory,  and  was  only  adapted  to  small  dis- 
tricts, like  the  ancient  democracies  of  Greece,  or  the  cantons 
of  Switzerland.  Montesquieu,  says,  "  The  natural  peculiarity 
of  small  states  is  to  be  governed  as  a  republic,  that  of  medium 
size  by  a  monarch,  that  of  vast  extent  by  a  despot."  Mr. 
Madison  combated  this  suggestion  with  great  felicity  in  the 
papers  which  he  contributed  to  "  The  Federalist."  He  distin- 
guished between  a  democracy  and  a  republic :  a  democracy 
he  defined  to  be  a  society  consisting  of  a  small  number  of 
citizens  who  assemble  and  administer  the  government  in  per- 
son ;  a  republic  consists  in  the  delegation  of  the  powers  of  the 
government  by  all  the  citizens  to  a  small  number  elected  by 
the  whole.  In  a  democracy,  the  territory  must  be  small  to 
permit  the  citizens  to  assemble  in  one  body.  In  a  republic, 
since  a  few  are  chosen  to  represent  the  whole,  these  few  can 
without  much  inconvenience  make  the  necessary  journey  to 
the  meeting  place  of  the  assembly.  He  pointed  out,  with  a 
clearness  which  the  event  has  justified,  that  great  extent  of 
country,  instead  of  being  an  insuperable  objection  to  a  re- 
public, .would,  under  the  representative  system,  contribute  to 
its  stability  and  strength.  The  introduction  of  railroads, 
steamboats,  and  telegraphs  has  freed  this  method  of  govern- 
ment from  most  of  the  embarrassments  of  time  and  distance. 
Turbulence  may  develop  in  one  section  without  finding  sym- 
pathy in  another ;  the  local  influences  that  may  mislead  the 
people  in  one  state  will  seldom  exist  in  many  states ;  and  the 
majority,  liable  to  be  mistaken  in  regard  to  men,  will  seldom 
be  misled  with  respect  to  measures.  They  will  not  mistake 
oppression  and  tyranny  for  real  advantages. 

Again,  however  bad  the  individual  may  be,  he  desires  his 
government  to  be  just.  Thieves  and  malefactors  will  vote  on 
the  side  of  virtue  when  it  is  presented  as  an  abstract  ques- 
tion. As  most  of  our  laws  are  made  to  meet  future  cases,  the 
opportunity  to  vote  right  is  presented  before  the  pressure  of 
the  particular  case  is  felt,  and  hence  the  majority  of  our  laws 
are  nearly  right.  The  evils  we  complain  of  arise  from  laws 
made  in  the  presence  and  under  the  pressure  of  the  case  itself. 


RELIANCE   UPON  THE  PEOPLE.  317 

Of  course,  the  demagogue  is  the  natural  product  of  a  demo- 
cratic government.  Our  system  will  not  permit  him  to  be- 
come a  tyrant ;  it  compels  him  to  study  and  promote  the 
advantage  of  the  people,  as  the  most  effective  means  for  his 
own  advantage.  If,  unhappily,  the  majority  should  go  astray 
and  attempt  to  exercise  the  "  tyranny  of  the  majority  "  for 
the  oppression  of  any  portion  of  the  people,  —  for  it  is  not 
probable  that  they  would  use  it  for  the  oppression  of  them- 
selves,—  it  is  scarcely  conceivable  that  they  could  command 
all  the  departments  of  the  government  at  one  time  ;  some  one 
department  would  remain  firm,  and  check  the  violence  of  the 
others. 

A  condition  can  be  conceived  and  a  hypothetical  case 
stated,  in  which  all  safeguards  may  prove  inadequate.  Such 
a  case  may  arise.  But  we  cannot  suppose  that  it  will  con- 
tinue without  some  redress  or  amelioration  after  the  next  elec- 
tion. The  government  itself  may  thwart  the  will  of  the 
people.  But  then  the  people  themselves  must  turn  the  govern- 
ors out.  "If,"  said  Mr.  Hamilton,  ''the  government  should 
overpass  the  just  bounds  of  their  authority,  the  people  must 
appeal  to  the  standard  they  have  formed,  and  take  such  meas- 
ures to  redress  the  injury  done  to  the  Constitution  as  the 
exigency  may  suggest  and  prudence  justify."  ^ 

The  judicial  department  in  the  nation  is  more  permanent. 
The  judges  hold  ofiice  for  life.  In  many  of  the  states  their 
tenure  of  office  is  long.  History  instructs  us  that  liberty  has 
nothing  to  fear  from  a  judiciary  permanent  in  its  tenure  and 
destitute  of  political  function. 

It  is  only  in  representative  governments  that  the  separation 
of  the  legislative,  executive,  and  judicial  departments  can  be 
complete.  In  an  absolute  monarchy,  the  monarch,  or  the 
council  he  appoints,  makes  the  laws.  He  or  his  appointees 
execute  them.  He  or  his  judges  expound  them.  Thus  every 
power  derives  its  source  from  the  executive,  and  must  in  the 
nature  of  things  tend  to  preserve  his  power  and  influence. 
The  same  is  true  of  an  aristocracy.  The  executive  power  may 
be  manifold,  but  the  principle  of  action  is  the  same,  and  the 
result  the  same. 

1  Federalist.  No.  33. 


=C^t  LIBRAE 


CAL\fOP^ 


318  CONSTITUTIONAL  HISTORY. 

It  is  not  strictly  true  that  in  our  system  the  executive,  legis- 
lative, and  judicial  functions  of  the  government  are  absolutely 
separated  into  entirely  distinct  departments.  The  President, 
by  his  power  of  approval  and  veto,  exercises  an  influence  and 
often  a  control  over  legislation,  and  thus  participates  in  legis- 
lative functions.  The  Senate  participates  with  the  executive 
in  the  appointment  of  officers,  and  in  the  making  of  treaties. 
The  House  of  Representatives  has  a  practical  negative  upon 
treaties  which  depend  upon  an  appropriation  of  money.  The 
House  is  the  accusing  body  in  case  of  impeachable  offences. 
The  Senate  exercises  judicial  power  in  the  trial  of  impeach- 
ments. The  appointment  of  certain  officers  may  be  vested 
in  the  courts.  But  these  exceptions  do  not  impair  the  general 
effect  of  the  separation  of  powers,  or  the  good  results  of  the 
system.  The  veto  power  tends  to  preserve  the  executive 
powers  from  legislative  encroachment,  to  induce  care  in  leg- 
islation, and  is  sometimes  a  wholesome  corrective.  The  trial 
of  impeachments  is  a  function  rarely  exercised ;  it  would  no 
doubt  be  wiser  to  commit  it  to  a  body  of  more  judicial  and 
less  partisan  methods.  The  participation  of  the  Senate  in 
appointments  to  office  is  injurious  to  that  body,  but  it  is  wise 
to  have  some  power  assist  the  executive,  and  it  is  not  easy  to 
name  any  better.  The  appointment  of  officers  is  very  spar- 
ingly committed  to  the  courts. 

The  Constitution  provides  for  its  own  amendment.  This  is 
a  safeguard  against  revolution  and  discontent.  There  may  be 
defects  in  the  system  of  government :  here  is  power  to  re- 
move them.  The  prerogative  is  not  difficult  to  use  in  case  of 
a  proper  demand  for  it.  It  exists,  and  the  people  know  that 
if  defects  in  the  system  continue,  it  is  because  they  continue  to 
tolerate  them.  The  fact  that  the  Constitution  is  subject  to 
revisal  and  amendment  is  a  constant  warning  to  those  charged 
with  the  administration  that  any  system  which  defeats  the 
will  of  the  people,  the  people  can  change.  If  no  such  remedy 
existed,  it  is  probable  that  discontent  would  be  increased,  and 
small  grievances  be  magnified  into  justification  of  rebellion  or 
revolution.  Revolution  means  convulsion  and  carnage  ;  those 
who  excite  it  cannot  control  it ;  no  one  knows  when  the  end 
will  come,  or  what  it  will  be.     How  much  better  to  secure  in 


INFLUENCE   OF  LOCAL  GOVERNMENTS.  319 

peace,  and   by  lawful  methods,  the  reforms  suggested  by  ex- 
perience, and  approved  by  the  voice  of  more  than  a  majority. 

Our  system  of  national  and  state  governments  meets  the 
wants  and  gratifies  the  feelings  of  our  people.  Herein  lies  the 
great  guarantee  of  its  strength  and  success.  The  people  have 
a  voice  in  the  choice  of  the  President  and  the  representatives 
in  Congress.  National  questions  thus  are  brought  sufficiently 
near  to  the  people  to  engage  their  active  attention,  and  give 
creed  and  character  to  the  great  political  parties  with  which 
they  are  pleased  to  be  connected,  and  into  which  they  divide 
with  a  surprising  nearness  of  equality  in  numbers.  State  and 
local  affairs  are  brought  very  near  to  them. 

The  direction  of  local  affairs  is  usually  controlled  by  state 
laws,  but  these  are  so  framed  as  to  give  to  every  local  constit- 
uency the  practical  management  of  its  own  local  government. 
Each  constitutency  best  knows  its  own  wants  and  can  best 
provide  for  them.  The  system  of  local  self-government  is 
practically  coeval  with  the  colonization  of  the  country.  Town--^ 
ships  were  the  schools  in  which  American  democracy  was  first 
nurtured.  The  colony  bore  the  impress  of  the  township,  the 
state  of  the  colony,  and  the  nation  of  the  state.  The  whole 
system  is  only  the  expansion  of  local  self-government.  Local 
self-government  is  the  legacy  of  colonial  times,  and  has  become 
the  inseparable  attribute  of  American  civilization.  From  the 
beginning  it  has  flourished  with  the  force  and  vigor  of  a  spon- 
taneous product.  It  has  been  cultivated  and  preserved  by 
constant  and  universal  exercise.  The  sports  and  societies  of 
children  are  not  uncommonly  regulated  by  rules,  which  the 
older  children  formulate  in  a  written  constitution  and  by-laws. 
The  instinct  of  government  by  written  laws  is  strong  and  ac- 
tive. And  all  over  the  land,  from  Plymouth  Rock  to  the 
Golden  Gate,  the  affairs  of  every  road  and  school  district, 
mining  camp,  lumber  clearing,  township,  county,  village,  and 
city  are  locally  self-governed.  Not  infrequently  has  it  hap- 
pened that  the  march  of  emigration  has  pushed  beyond  the 
frontier  posts  of  any  state  or  territorial  organization.  There 
the  governing  genius  of  our  people  has  asserted  itself,  and 
without  waiting  for  any  sanction  from  lawful  authority  has 
organized   governments    and   administered    justice.      Their 


320  CONSTITUTIONAL  HISTORY. 

methods  may  have  been  rude  and  their  justice  speedy,  but  the 
righteousness  of  their  judgments  has  seldom  been  challenged. 
When  the  authority  to  organize  a  government  reaches  these 
pioneers  in  the  due  course  of  events,  they  usually  are  ready 
and  competent  to  exercise  it. 

The  general  government  might,  by  its  general  laws,  and 
system  of  bureaus,  as  in  France,  manage  all  local  affairs,  if 
such  method  were  permissible  under  our  system  ;  but  it  is 
obvious  that  it  is  much  better  for  the  people  to  take  the  direc- 
tion of  their  local  affairs  than  for  the  general  government  to 
take  it.  In  the  one  case,  the  people  think  and  act  for  them- 
selves ;  in  the  other,  the  government  thinks  and  acts  for  them, 
—  a  fact  which  may  accord  in  some  degree  with  the  difference 
between  the  American  and  French  character,  and  account 
for  it. 

Passing  to  state  affairs,  —  if  the  people  of  the  State  of 
Maine  desire  to  prohibit  the  sale  of  intoxicating  liquors,  there 
is  no  good  reason  why  the  people  of  any  other  state  should 
object ;  or  why  the  people  of  Maine  should  move  the  whole 
nation  in  order  to  establish  a  domestic  regulation.  When 
such  matters  are  confined  to  the  states,  the  people  of  every 
state  can  do  as  the  majority  think  best.  Moreover,  every 
citizen  of  the  state  is  encouraged  to  take  such  action  as  he 
thinks  proper.  He  is  free  from  the  depressing  conviction  that 
unless  he  can  move  the  whole  nation,  his  efforts  are  lost.  If 
the  laws  permit  each  town  or  village  to  adopt  or  reject  its  own 
regulations  respecting  schools,  public  improvements,  and  other 
matters  of  local  government,  a  wide  field  is  open  to  persons, 
who  would  be  dumb  if  they  had  to  make  the  state  or  nation 
hear  in  order  to  be  heeded.  In  American  communities  nearly 
every  man,  however  feeble  in  intelligence  or  influence,  some- 
times casts  his  thoughts  beyond  himself  and  considers  what 
society  ought  to  do.  Our  system  of  government  encourages 
all  to  do  this.  More  zeal  than  wisdom  may  be  expended,  but 
the  desire  to  benefit  mankind  is  a  noble  one,  and  the  person 
who  is  moved  by  it  is  the  happier  for  the  privilege.  Society 
is  better  as  the  result  of  the  discussion.  Even  fools  and  fa- 
natics sport  with  some  foundation  questions  of  truth,  and  while 
they  rant,  wise  men  think,  and  the  outcome  is  towards  the  di- 


■ 


TERRITORIAL   EXPANSION.  321 

rection  of  the  wisest  thought.  The  sense  of  liberty  to  act  as 
one  thinks  to  be  right,  of  the  power  to  vote  in  the  same  way, 
of  the  hope  to  accomplish  some  good,  is  a  positive  happiness ; 
and  that  government  builds  wisely  for  itself  and  its  people 
which  secures  and  encourages  this  source  of  happiness. 

The  expenses  of  government  are  usually  less,  the  nearer  the 
expenditure  of  money  is  kept  within  the  control  of  those  who 
provide  it.  If  those  who  administer  are  under  the  eyes  of 
those  who  pay  the  cost  of  administration,  abuses  will  be  less, 
and  exposure  of  abuse  more  certain.  A  dollar  accomplishes 
less  in  Washington  than  in  our  state  capital,  less  in  our  state 
capital  than  under  the  charge  of  our  local  government.  The 
further  power  is  removed  from  its  source,  the  more  extrava- 
gant and  irresponsible  it  becomes. 

Given  local  self-government,  it  matters  little  how  vast  a 
territory  the  nation  embraces.  Texas  has  little  in  common 
with  Vermont  except  her  equal  desire  for  the  national  pros- 
perity, her  claim  for  the  equal  benefit  of  the  national  protec- 
tion and  instrumentalities,  and  her  equal  obedience  to  the 
national  demands  and  authority.  Subject  alike  to  the  na- 
tional Constitution,  each  may  pursue  in  her  own  way  her  best 
methods  of  domestic  happiness  and  prosperity,  without  in- 
juring the  other,  or  exciting  her  jealousy  or  animosity.  If 
Spanish  invasion  should  threaten  to  pass  the  Rio  Grande,  or 
English  invasion  the  St.  Lawrence,  the  remoter  state  would 
be  proud  to  guard  the  threatened  bank  of  her  sister's  river. 

Any  statesman  who  conceives  the  idea  of  superseding  the 
state  governments  and  extending  the  national  government 
over  them  takes  small  account  of  the  force  of  the  trait  of 
self-government  in  our  people.  It  is  the  dominant  principle 
of  our  system.  It  finds  its  greatest  activity  in  local  govern- 
ment, largely,  no  doubt,  because  the  majority  of  people  can- 
not well  see  beyond  the  local  horizon.  The  struggle  of  the 
nation  to  gain  and  maintain  its  place  was  prolonged  because 
the  people  feared  that  the  local  government,  which  they  had 
and  understood,  was  in  danger  from  the  new  and  greater  gov- 
ernment, which  they  did  not  well  understand,  and  therefore 
feared.  Gradually  this  fear  was  dispelled.  So  many  states 
and  so  many  people  of  kindred  race  and  purpose  really  formed 

21 


322  CONSTITUTIONAL  HISTORY. 

a  nation  before  its  existence  was  declared,  and  gradually  the 
people  felt  and  saw  the  good  the  national  government  per- 
formed. Their  vision  expanded  and  took  in  the  larger  hori- 
zon. They  saw  that  their  local  governments  rested  upon  a 
surer  base  with  the  national  guarantees. 

These  guarantees  are  plainly  expressed  in  the  Constitution, 
and  when  time  had  inspired  confidence  in  them,  they  added 
immensely  to  the  strength  of  our  system.  Thus,  ''  the  United 
States  shall  guarantee  to  every  state  a  republican  form  of  gov- 
ernment "  is  not  a  mere  phrase.  Suppose  a  foreign  power 
should  invade  a  state  and  overthrow  its  government.  The 
United  States  would  expel  the  invader  and  restore  republican 
government.  Should  the  people  of  the  state  change  their 
government  to  a  monarchy,  the  United  States  would  inter- 
pose and  restore  the  republican  form  of  government.  Repub- 
lican government  in  every  state  is  essential  to  the  federal 
system  ;  if  that  system  is  changed  by  any  state  it  is  threat- 
ened throughout.  The  guarantee  is  essential  to  all  the  states 
as  well  as  to  any  one  of  them. 

Suppose,  as  occurred  in  Rhode  Island  in  1842,  two  govern- 
ments contend  for  supremacy,  each  claiming  to  be  legitimate. 
The  result  is  anarchy  and  civil  war  unless  one  or  the  other 
be  promptly  suppressed.  In  the  case  cited  the  recognition  of 
one  government  by  the  President  effectually  suppressed  the 
other. 

The  ratification  of  the  Constitution  was  opposed  by  many 
upon  the  ground  that  the  new  government  was  made  to  de- 
stroy the  states  and  deprive  the  people  of  power.  Mr.  Madi- 
son, in  the  forty-sixth  number  of  "  The  Federalist,"  met  this 
objection  in  his  inimitable  way.  **  Either,"  he  said,  "  the 
mode  in  which  the  federal  government  is  to  be  constructed 
will  render  it  sufiiciently  dependent  on  the  people,  or  it  will 
not.  On  the  first  supposition,  it  will  be  restrained  by  that 
dependence  from  forming  schemes  obnoxious  to  their  con- 
stituents. On  the  other  supposition,  it  will  not  possess  the 
confidence  of  the  people,  and  its  schemes  of  usurpation  will 
be  easily  defeated  by  the  state  governments,  which  will  be 
supported  by  the  people."  This  reasoning  is  as  true  now  as 
it  was  a  hundred  years  ago.     If  the  federal  government  should 


GOVERNMENT  ADAPTED  TO   THE  PEOPLE.         323 

lose  the  confidence  of  the  people,  it  could  not  long  exist.  In 
the  late  rebellion,  but  for  that  confidence,  it  would  have 
ended  just  as  the  old  confederacy  ended. 

To  quote  Montesquieu  again  :  "  Government  is  like  all 
other  things  in  the  world :  to  preserve  it,  it  must  be  loved. 
No  one  has  ever  heard  it  said  that  kings  do  not  love  mon- 
archy, or  that  despots  hate  despotism."  Manifestly  also  a 
republic,  to  be  securely  grounded,  must  engage  the  affection 
and  support  of  the  people  by  whom  and  for  whom  it  exists. 

Plainly  a  republican  government  cannot  be  readily  adapted 
to  every  great  empire,  as  Russia,  for  example.  A  constitu- 
tion must  be  framed  with  reference  to  the  people  to  be  gov- 
erned. It  was  the  felicity  of  the  American  people  that  they 
were  trained  in  republican  government  from  their  infancy. 
In  an  empire  like  Russia  it  would  be  rash  to  try  to  substitute 
a  government  like  ours  for  the  autocracy  that  prevails  there. 
The  habits  of  the  people ;  their  industrial,  commercial,  and 
tribal  interests  ;  their  methods  of  thought ;  their  traditions, 
education,  spirit,  aspirations,  religion,  and  resources ;  the  situ- 
ation, extent,  and  character  of  the  country,  —  would  all  need 
to  be  considered,  in  superseding  the  present  government  by  a 
republic.  It  probably  would  be  better  to  begin  with  gradual 
changes,  if  such  a  suggestion  is  admissible.  Under  a  wise 
ruler,  by  gradual  changes  a  constitutional  monarchy,  in  which 
some  privileges  of  representation  should  be  conceded  to  the 
most  conservative  classes  of  the  people,  might,  and  probably 
will,  in  the  near  future,  be  attempted.  No  monarchy  is  so 
absolute  but  it  must  and  does  feel  the  influence  of  the  people, 
and  never  more  than  now. 

Possibly  the  empire  of  Morocco  in  the  northwest  corner  of 
Africa  is  an  exception  to  this  remark.  There  the  Sultan,  who 
claims  to  be  the  thirty-fifth  in  lineal  descent  from  the  uncle 
and  son-in-law  of  the  prophet  Mahomet,  and  who  rules  by 
virtue  of  a  family  succession  unbroken  for  three  hundred 
years,  has  ministers  to  advise  him,  but  has  no  law  save  the 
Koran,  and  no  interpreter  of  the  Koran  above  himself.  His 
will  and  word  are  the  supreme  law.  It  is  wonderful  that  one 
of  the  fairest  portions  of  the  earth,  bounded  upon  one  side  by 
the  Mediterranean  and  upon  the  other  by  the  Atlantic,  the 


324  CONSTITUTIONAL  HISTORY. 

very  best  corner  on  the  cross-roads  of  civilization,  should  have 
reposed  so  long  in  the  security  of  its  incapacity  in  sight  of 
the  ships  of  the  commerce  of  the  world,  and  often  within  hear- 
ing of  the  guns  of  the  contending  fleets  of  Europe.  Moham- 
etanism  has  stared  from  this  corner  in  stupid  peace  upon 
centuries  of  Christian  struggle  and  activity. 

The  Mexican,  Central  American,  and  South  American  re- 
publics have  constitutions  somewhat  similar  to  ours.  But 
they  do  not  operate  with  the  energy,  efficiency,  tranquillity, 
and  good  results  that  we  experience.  The  difference  is  not  in 
the  form  and  plan  of  their  constitutions,  but  in  the  people. 
They  have  not  yet  attained  the  education,  poise,  elevation, 
virtue,  and  habits  which  inspire  them  to  cooperate  to  make 
their  government  as  good  as  possible,  and  to  repose  with  con- 
fidence upon  its  stability  and  justice.  Hence  revolts,  rebel- 
lions, or  revolutions  need  scarcely  surprise  us.  No  doubt 
these  are  educators,  cruel  and  wasteful  though  they  may  be. 
Through  them,  and  in  spite  of  them,  the  people  will  gradually 
work  their  way  toward  the  capacity  to  govern  themselves 
better. 

A  government  influences  the  people,  and  they  in  turn  the 
government.  No  government  within  the  range  of  civilization 
can  escape  the  influences  of  the  civilization  of  the  age.  Much 
less  so  now,  when  steam  and  electricity  annihilate  the  bar- 
riers of  time  and  distance. 

Our  government  exists  so  near  to  the  people  that  the  just 
complaint  of  the  feeblest  citizen  can  be  heard.  The  people 
appeal,  if  need  be,  to  the  government  without  fear  of  rebuke, 
and  with  manly  confidence.  The  government  adapts  itself  to 
the  people,  and  the  people  to  their  government. 

The  stability  and  cohesion  of  our  government  has  been 
aided  by  physical  causes  peculiar  to  our  country.  The  great 
mountain  ranges  and  intervening  rivers  run  from  north  to 
south.  They  have  been  aptly  called  "  nature's  eternal  liga- 
ments," binding  the  frozen  North  to  the  sunny  South.  The 
rivers  of  the  country  naturally  bind  our  people  together,  and 
the  steamboat  has  made  the  bond  still  stronger.  The  high- 
ways, post  roads,  and  canals  have  followed  the  valleys  and  the 
rivers.     Had  these  mountain  ranges  run  from  east  to  west 


THE  SPIRIT  OF  NATIONALITY.  826 

the  late  civil  war,  as  has  been  suggested,  might  have  found 
an  ally  in  nature  that  would  have  given  success  and  perma- 
nency to  the  attempted  division.  The  railroads  and  tele- 
graphs which  cross  the  mountains  came  too  late  to  avert  the 
civil  war,  but  they  were  aids  to  its  speedier  suppression,  and 
now  they  bind  the  new  Union  together  with  stronger  cords 
than  ever  before. 

The  "  Spirit  of  Nationality "  is  a  bond  of  union  which 
strengthens  as  the  nation  grows  greater.  The  physical  liga- 
ments of  our  country,  both  natural  and  artificial,  contribute 
much  to  this  spirit.  Great  mountain  ranges  and  rivers  sep- 
arate people.  This  separation  is  confirmed  if  different  lan- 
guages, governments,  institutions,  and  customs  exist  within 
the  different  states.  The  Pyrenees  separate  France  from 
Spain ;  the  Alps,  France  from  Italy,  and  Italy  from  Switzer- 
land. The  Rhine  formerly  marked  the  line  between  the 
French  and  German  races.  The  Rio  Grande  separates  us 
from  the  Spanish  speaking  people  of  Mexico.  But  the  differ- 
ence in  race,  customs,  institutions,  and  language  is  the  real 
boundary. 

Canada  did  not  unite  with  us  in  the  Revolution  because  we 
had  no  real  kinship  or  sympathy  with  that  people,  nor  they 
with  us.  When  the  English  tongue  and  customs  shall  have 
superseded  the  French  throughout  the  Dominion,  union  with 
us  will  not  be  difficult.  It  was  because  the  people  of  the  col- 
onies and  states  on  this  continent  had  so  much  in  common 
that  they  came  together  in  their  desire  and  effort  for  indepen- 
dence, and  afterwards  in  making  a  government  for  the  nation 
which  in  fact  had  long  been  forming.  The  spirit  of  national- 
ity brought  and  kept  them  together.  Witness  the  German 
and  Austrian  empires ;  united  Italy  ;  the  kingdom  of  Spain ; 
the  confederation  of  Switzerland;  England,  Scotland,  and 
Wales ;  Norway  and  Sweden.  The  separate  parts  came  and 
remain  together  because  their  people  have  in  some  degree 
a  natural  affinity.  In  our  country  the  spirit  of  nationality  is 
strengthened  by  every  event  of  our  history.  Even  the  sol- 
diers who  fought  in  the  opposing  armies  in  the  civil  war  now 
come  too-ether  in  the  same  societies  and  associations.  The  at- 
traction  of  participation  in  the  war  overcomes  the  antagonism 


326  CONSTITUTIONAL  HISTORY. 

arising  from  its  opposing  sides.  Surely,  the  nation  engages 
the  love  of  the  people. 

Again,  its  magnitude  and  strength,  perfection  of  organiza- 
tion, and  command  of  resources  seem  to  forbid  even  attempt 
at  destruction.     Who  shall  contend  against  it  ? 

Lessons  drawn  from  history  need  not  excite  alarm  for  its 
perpetuity.  Indeed,  history  marks  a  new  era  for  mankind  in 
the  records  of  the  deliverance  of  the  people  from  the  bondage 
of  the  usurped  tyranny  of  rulers.  Not  a  mere  single  instance, 
like  that  of  the  chosen  people  of  Israel.  Not  here  and  there, 
as  in  the  small  city  states  of  ancient  Greece.  Not  deliver- 
ance for  the  patrician  few  and  serfdom  for  the  plebeian  many, 
as  in  republican  Rome.  Not  merely  where  the  sea  or  the 
mountains  become  the  allies  of  liberty,  as  in  the  Nether- 
lands or  in  Switzerland;  but  over  continents  and  for  the 
masses  of  all  the  people.  In  the  New  World  liberty  embraces 
the  hemisphere  ;  in  the  Old  it  marches  eastward  from  the 
islands  of  the  west  and  from  along  the  borders  of  the  ocean. 
Conquering  and  to  conquer  under  the  Gospel  banner  of  peace 
on  earth  and  good-will  toward  men,  it  will  enter  and  abide 
wherever  mankind  is  prepared  to  receive  it.  The  question  of 
the  future  is  not  how  to  acquire  liberty,  but  how  to  make  the 
wisest  and  best  use  of  it. 

The  invention  of  printing,  the  wide  diffusion  of  education, 
and  the  intercommunication  of  mankind  afford  a  guarantee 
of  good  government  in  some  form.  The  long  delayed  day  of 
the  equality  of  human  rights  has  dawned.  The  world  will 
never  recede  into  the  intellectual  darkness  of  the  Middle 
Ages.  The  people  now  know  that  governments  are  formed 
for  their  benefit,  and  as  they  have  the  power  they  will  not 
consent  to  lose  it.  The  science  of  government  is  better  un- 
derstood than  ever  before.  The  value  of  a  good  constitution 
is  known.  Our  people  are  not  likely  to  lose  the  wisdom  they 
have  gained  unless  their  vices  destroy  their  physical  and  men- 
tal vigor.  There  is  reason  to  hope  that  we  shall  gradually 
improve  our  government.  Whatever  is  a  true  principle  in 
justice  in  one  country  is  true  in  all,  —  on  the  banks  of  the 
Danube  and  the  Ganges  no  less  than  on  the  Hudson,  —  and 
the   students   in   one  country  are   students  of   every  other. 


CONDITIONS   FAVORABLE   TO  LIBERTY.  327 

Truth,  wherever  discovered,  can  no  longer  be  confined  to  one 
section,  one  race,  language,  or  continent,  but  must  ultimately 
pervade  and  be  the  common  property  of  all  civilized  peoples. 
The  wisdom  of  the  wisest  becomes  the  common  property  of 
all.  Steam  and  lightning  bring  the  uttermost  ends  of  the 
world  together ;  the  better  mankind  know  each  other,  the 
wiser  and  better  they  become.- 

Our  great  physical  strength  and  our  isolated  position  pro- 
tect us.  Our  sense  of  justice  should  afford  us  a  still  stronger 
protection.  Our  vast  expanse  of  territory  renders  sectional 
difficulties  more  sectional  and  less  dangerous.  State  lines 
are  only  significant  as  indicating  the  limits  of  local  jurisdic- 
tion. The  same  justice  and  substantially  the  same  laws  exist 
upon  both  sides  of  these  lines.  Our  laws  are,  or  are  to  be, 
the  reflex  of  the  popular  will,  and  the  aggregate  popular  will 
demands  equal  and  exact  justice.  The  era  of  great  political 
leaders  has  passed  away.  The  people  have  been  levelled  up 
nearer  the  leaders.  The  press,  the  platform,  and  a  broader 
individual  horizon  contribute  to  displace  the  leaders  of  the 
people.  No  newspaper  can  be  great  that  is  a  mere  party 
organ.  Careful  students  of  our  economic  conditions  are  in- 
creasing in  numbers  and  influence.  The  national  habit  of 
solving  the  problems  of  political  economy  by  party  platforms 
and  a  majority  vote  would  be  ridiculous,  were  it  not  for  the 
fact  that  preceding  and  following  the  platforms  there  is  uni- 
versal discussion ;  by  such  means  the  facts  and  arguments 
which  are  ascertained  and  adduced  by  the  learned  and  thought- 
ful are  made  familiar  to  great  multitudes  of  people. 

Political  students  and  writers  who  aspire  to  instruct  the  peo- 
ple spurn  the  imputation  that  they  are  bound  by  the  fetters 
of  party.  They  seek  to  lead  the  people,  not  a  party,  to  true 
conceptions  of  political  duty  and  national  welfare.  Nothing  is 
sadder  in  our  unwritten  political  history  than  the  usual  fate 
of  the  average  political  aspirant  for  public  office  and  its  emol- 
uments. Where  one  attains  substantial  success,  hundreds 
wreck  their  lives.  These  men  are  usually  of  good  native 
capacity,  but  of  defective  education  and  moral  strength.  In 
private  pursuits  their  capacity  joined  to  industry  and  integ- 
rity would  secure  them  success.     In  political  life  a  transient 


328  CONSTITUTIONAL  HISTORY. 

success  is  usually  followed  by  a  lifetime  of  failure.  Our  his- 
tory is  yet  young,  but  if  the  lists  of  ambitious  ruined  and  for- 
gotten aspirants  for  political  distinction  could  be  compiled, 
their  bulk  would  be  huge  and  their  warning  solemn.  But 
there  is  reason  to  believe  that  we  are  slowly  and  steadily  mul- 
tiplying the  real  elements  of  a  solid,  genuine,  and  intelligent 
public  life.  The  weak  and  fickle,  the  sham  and  pretentious, 
the  dishonest  and  knavish  may  never  be  less,  but  the  capable 
and  genuine  will  steadily  increase  in  numbers  and  influence. 
Ten  righteous  men  would  have  saved  Sodom.  The  like  rule 
holds  good  yet.  Great  is  the  saving  power  to  the  state  of  its 
capable  and  righteous  men. 


i 


LECTURE  XIV. 

SOME  SUPPOSED  DANGERS. 

Folly  and  madness  may  destroy  any  human  institution. 
Mere  local  spasms  and  convulsions  will  be  suppressed  by  tbe 
greater  strength  of  the  larger  and  more  sober  portions  of  the 
country.  The  majority  must  be  disaffected  in  order  that  any 
attempted  revolutions  shall  achieve  success.  Foreign  hostility 
or  injustice  would  readily  unite  our  people  in  foreign  war. 
If  we  were  feeble  we  might  be  ruined.  But  we  are  strong 
and  have  the  ability  to  take  care  of  ourselves,  and  to  inspire 
an  enemy  with  prudence. 

The  spoliation  of  private  property  is  a  possible  danger. 
Democracy,  it  is  said,  tends  to  crush  the  wealthy  and  intelli- 
gent classes.  The  redistribution  of  property  and  legal  extor- 
tion from  the  wealthy  have  great  attractions  for  the  desperately 
poor.  Universal  suffrage  has  placed  power  in  the  hands  of  the 
poor.  Organized  and  united  poverty  could  outvote  wealth, 
and  dictate  the  laws,  and  thus  bring  about  the  tyranny  of  the 
majority.  Wealth  and  intelligence  are  vigilant  and  power- 
ful ;  vastly  more  powerful  in  proportion  to  numbers  than 
ignorance  and  poverty.  If,  while  they  can  make  the  choice, 
the  alternative  is  presented  between  suffering  the  injustice  of 
the  mob  and  reposing  in  the  tranquillity  of  a  monarchy  or  a 
dictatorship,  doubtless  the  latter  would  be  preferred. 

If  so,  then  the  hopes  of  the  poor  depend  upon  even-handed 
justice;  if  they  should  abuse  their  power  and  persist  in  its 
abuse,  they  would  in  the  end  lose  their  liberties,  or  some  part 
of  them.  The  rights  of  property  must  be  respected,  else  in- 
telligence and  wealth  will  combine  for  self-preservation.  Such 
a  combination  in  this  country  would  sooner  or  later  triumph 
over  the  anarchy,  confusion,  and  distractions  of  the  mob. 
Knowledge  is  power,  and  knowledge  combined  with  wealth, — 


0 


330  CONSTITUTIONAL  HISTORY. 

wealth  embracing  in  this  country  every  man  who  has  a  house 
and  lot,  or  some  accumulation  as  the  result  of  his  industry  and 
economy,  —  would  restore  peace  and  good  order,  though  liberty 
might  be  largely  sacrificed.  Wealth  itself  can  do  much  to 
avert  any  such  evil  by  its  fairness  in  bearing  its  just  share  of 
the  burdens  of  government.  This  is  one  of  the  lessons  wealth 
must  learn.  Where  universal  suffrage  abounds,  wealth  can- 
not afford  to  oppress  the  poor  in  order  to  increase  itself.  The 
hopes  of  the  rich  also  depend  upon  even-handed  justice. 
Against  the  happening  of  any  convulsions  arising  from  the 
attempt  of  the  poor  to  extort  from  the  rich,  and  from  the 
rich  oppressing  the  poor,  we  have,  in  addition  to  the  interests 
of  both  classes,  the  American  respect  for  law  and  justice. 
Poverty  is  hard,  but  it  is  the  school  of  virtue  for  large  masses 
of  the  people,  and  there  is  little  reason  to  suppose  that  any 
convulsions  will  rise  to  proportions  above  a  riot.  Americans 
usually  suppress  riots  with  promptness.  When  the  exigency 
requires  it,  authority  to  use  powder  and  ball  is  generally 
given,  and  in  such  cases  no  blank  cartridges  are  used,  and  the 
conflict  is  short  and  the  ascendency  of  authority  rapid  and 
complete.  There  seems  to  be  a  real  kindness  in  the  very 
cruelty  of  instant  vigor.  Every  convulsion  ought  to  teach 
both  government  and  people  practical  wisdom.  If  it  have  its 
origin  in  a  wrong  done  by  the  people's  government,  the  in- 
struction of  the  people  must  lead  to  the  correction  of  the 
wrong.  The  only  common  ground  that  all  men  and  classes 
of  men  can  stand  together  upon  is  that  of  fair  play  and  no 
cheating.  The  individual  might  practise  otherwise  for  him- 
self if  he  had  the  opportunity,  but  in  state  affairs  only  a  few 
have  the  opportunity,  and  the  masses  seldom  can  agree  upon 
any  other  thing  than  that  which  equal  justice  requires.  From 
the  necessity  of  the  case  the  strength  which  is  found  in  union 
can  only  be  obtained  by  conforming  to  the  terms  which  make 
union  possible. 

But  if  a  republic  depends  upon  virtue  we  need  not  despair. 
The  great  mass  of  our  people  are  virtuous  to  a  degree  never 
surpassed  in  any  great  country  in  any  age.  This  is  an  age 
of  inquiry,  free  discussion,  and  criticism ;  the  dogmas  of  the- 
ologians may  have  lost  something  of  respect  and  force,  but 


POSSIBLE  DANGERS.  331 

practical  and  personal  righteousness  in  daily  life  was  never 
so  abounding.  Witness  the  vast  circulation  of  religious  and 
devotional  books  and  publications;  witness  the  churches, 
schools,  societies  for  the  diffusion  of  knowledge,  the  promotion 
of  temperance,  the  relief  of  suffering,  the  care  of  the  unfortu- 
nate, the  help  of  the  poor.  Witness  also  that  private  be- 
nevolence which  seeks  happiness  in  doing  good.  Indepen- 
dently of  taxation  every  man  and  woman,  whose  means  afford 
the  privilege,  unites  with  others  in  various  organized  efforts 
to  help  the  unfortunate.  We  are  apt  to  lose  sight  of  the 
good  in  contemplation  of  the  bad,  forgetting  that  the  good  is 
the  rule  and  the  bad  the  exception,  and  that  the  exceptional 
always  more  strongly  arrests  attention.  There  is  little  rea- 
son to  fear  that  the  party  of  wickedness  and  lawlessness  will 
ever  outnumber  the  party  of  virtue,  decency,  and  order.  Bad 
men  may  deceive,  mistakes  may  be  made,  but  the  evil  will 
be  temporary,  and  will  be  reformed  in  obedience  to  the  right 
feeling  of  the  greater  numbers  of  our  people. 

But  it  is  said  that  the  great  strain  will  come,  when  our 
population  shall  have  so  increased  that  the  masses  cannot 
procure  necessary  food  and  clothing.  That  is  a  distant  day, 
but  there  is  no  doubt  that  the  time  will  come  when  our  popu- 
lation will  press  upon  the  means  of  subsistence  and  be  limited 
by  it.  Our  population  is  destined  to  be  great.  In  a  hundred 
years  it  has  grown  from  three  to,  say,  sixty  millions.  We 
have,  say,  fifteen  hundred  millions  of  acres  of  land,  good  and 
poor,  and  some  of  it  very  poor.  If  three  acres  could  be  made 
to  feed  and  clothe  one  person  we  could  subsist  five  hundred 
millions  of  people  —  not  ten  times  our  present  number.  War, 
pestilence,  and  famine,  in  other  ages  and  countries,  have  re- 
duced the  number  who  eat  to  the  supply  of  food  to  be  eaten. 
Poverty  of  the  food  supply  provokes  war,  pestilence,  and 
famine.  In  America  the  conditions  opposed  to  the  waste  of 
human  life  from  any  of  these  causes  are  powerful.  Our  isola- 
tion as  well  as  our  strength  and  martial  qualities  protect  us 
from  foreign  wars ;  our  strength  and  respect  for  law  protect 
us  from  domestic  strife.  Our  sanitary  regulations,  under- 
taken by  the  national,  state,  and  municipal  authorities,  protect 
us  in  a  high  degree  from  pestilence  and  infectious  diseases, 


332  CONSTITUTIONAL  HISTORY. 

and  with  advanced  medical  skill  go  far  to  prolong  human 
life.  The  teachings  and  practice  of  Christianity  in  modern 
times  tend  to  the  preservation  of  every  human  life  however 
miserable.  Passing  by  the  ethical  question  involved,  and 
regarding  the  question  solely  in  the  interests  of  political 
economy,  it  would  be  better  with  men,  as  with  animals  and 
plants,  that  only  the  fittest  should  survive  ;  but  the  humanity 
of  the  nineteenth  century  embraces  all  in  its  benevolence, 
and  spends  possibly  more  time,  money,  and  sympathy  upon 
the  broken  human  hulks  that  lie  stranded  upon  the  shores  of 
existence,  than  upon  those  whose  lives  are  worth  preserving. 

The  favorable  conditions  for  the  natural  increase  of  our 
population,  the  swarms  of  the  surplus  of  other  peoples,  must 
inevitably  swell  our  numbers  to  the  utmost  limit  of  our  means 
to  afford  subsistence.  The  fields  of  productive  industry  must 
become  more  and  more  crowded,  and  there  will  be  an  ever 
increasing  throng  of  those  who  will  want  to  enter,  and  yet  be 
kept  out.  The  wages  of  those  who  work  will  be  less,  the  mul- 
titude of  those  who  never  can,  or  will  work,  will  be  greater. 
The  rich  and  poor  will  be  side  by  side,  and  yet  between  them 
a  great  gulf  fixed. 

What  can  be  done  with  the  coming  swarms  of  people,  who 
cannot  find  work  enough  or  obtain  pay  enough  to  afford  them 
a  decent  subsistence  ?  Such  a  people,  it  is  said,  will  listen  to 
the  demagogue,  the  adventurer,  the  charlatan,  whoever  will 
promise  them  the  easiest  help.  The  era  of  quacks  will  have 
arrived.  Government  may  have  a  standing  army  to  put  them 
down,  to  shoot  them  on  the  streets,  or  force  them  to  slink  to 
their  hovels  and  die.  Can  a  popular  government  meet  such 
a  strain?  The  men  who  will  swarm  in  revolts  and  mobs 
have  votes,  and  their  power  to  vote  inevitably  tends  to  weaken 
the  power  that  should  keep  them  in  order.  Will  not  the 
strong  man  mount  to  power  and  found  a  throne?  Will  not 
the  order  of  despotism  be  preferred  to  the  weakness  and  an- 
archy of  universal  suffrage?  This  is  the  problem  for  the 
future. 

A  prudent  care  of  our  public  lands  would  go  far  to  post- 
pone and  avoid  such  a  calamity.  None  but  the  actual  settler 
should  be  permitted  to  acquire  them.     There  should  be  no 


THE  FOOD  SUPPLY.  333 

monopoly  of  vast  tracts.  The  landlord  system  of  Europe 
should  take  no  root  here.  Tenancy  of  land  where  one  owns 
and  another  works  is  a  species  of  thraldom  unsuited  to  the 
genius  of  a  free  people.  It  cannot  be  entirely  abolished,  but 
the  government  should  not  extend  the  system.  Our  lands 
are  too  poor  to  support  both  landlord  and  tenant. 

Great  inventions  mark  the  nineteenth  century.  Steam  and 
machinery  do  the  work  that  otherwise  would  employ  idle 
hands.  Thousands  bring  only  their  hands  into  the  markets  of 
the  world.  Alas,  for  the  man  who  has  only  human  muscles 
to  offer  where  machinery  does  so  much  !  The  places  for  him 
in  the  great  centres  of  industry  are  closing  more  and  more. 
Machinery  drives  him  to  his  mother  earth  as  his  final  refuge. 

It  is  a  significant  fact  that  neither  invention  nor  machinery 
can  produce  the  materials  for  food  or  clothing.  These  now, 
as  from  the  beginning  of  the  world,  must  come  from  the  ani- 
mal and  vegetable  kingdoms  —  that  is,  from  growth.  Seed- 
time and  harvest,  the  eternal  rejuvenescence  of  nature  and  the 
eternal  ripening  of  her  fruits,  are  the  necessary  conditions  of 
human  subsistence.  The  power  given  us  by  the  Almighty  to 
increase  the  productive  capacity  of  earth,  water,  and  air  has 
thus  far  been  imperfectly  used.  To  make  barren  land  pro- 
ductive, to  make  good  land  more  productive,  to  increase  the 
fish  production  of  the  rivers  and  seas,  to  multiply  the  food- 
giving  fowls  of  the  air,  are  not  impossibilities.  Governments 
are  beginning  to  consider  these  matters.  Agricultural,  ex- 
perimental, and  fish  -  propagating  stations  are  established. 
Scientific  investigators  assert  that  all  the  ingredients  of  plant 
food,  except  such  as  the  atmosphere  affords,  exist  in  inexhaus- 
tible supply  in  the  minerals  of  the  earth.  If  so,  labor  only 
needs  intelligent  direction  to  extract  and  apply  them.  We 
may  reasonably  hope  that  the  demand  for  the  best  intelligence 
will  be  met.  The  government  ought  to  be  able  to  say  to  the 
poor  man.  There  yet  remains  a  little  land  upon  which  you  may 
toil.  Fortunate  will  it  be  if  it  can  be  said,  There  is  no  strip  of 
earth  so  barren  that  intelligent  toil  may  not  extract  from  it 
some  means  of  subsistence.  We  can  foresee  a  probable  source 
of  danger,  but  we  cannot  foresee  clearly  how  the  expanding 
intelligence,  humanity,  and  ingenuity  of  man  will  cope  with  it. 


334  CONSTITUTIONAL  HISTORY. 

The  existing  means  of  transportation  enables  the  surplus  of 
one  part  of  the  earth  to  make  good  the  deficiency  of  another. 
It  encourages  production  in  new  and  distant  colonies.  The 
continent  of  Africa  will  yet  be  made  to  contribute  her  share 
to  the  subsistence  of  the  world's  population.  It  can  scarcely 
be  doubted  that  the  productiveness  of  the  earth  can  be  in- 
creased fifty-fold  under  the  stimulus  of  necessity  directed  by 
the  highest  intelligence  aided  by  the  most  appropriate  means. 
What  problems  are  to  be  solved  in  this  direction  can  only  be 
known  when  the  need  for  their  solution  presses.  We  need 
not  distress  ourselves  with  the  apprehension  that  wisdom  is  to 
perish  with  our  generation,  and  that  those  who  come  after  us 
will  not  have  the  strength  their  day  requires. 

Universal  suffrage  has  its  evils,  but  it  has  its  merits  also. 
A  government  which  seeks  to  maintain  and  protect  the  equal- 
ity of  rights  of  all  men  can  best  do  it  by  the  most  liberal  ex- 
tension of  the  privilege  of  suffrage.  The  right  to  vote  and  the 
power  of  the  vote  afford  the  most  effective  shield  which  one 
class  has  against  the  oppression  of  another.  The  minority  to- 
day may  be  the  majority  to-morrow,  and  government  respects 
possible  as  well  as  actual  power.  Of  course  many  are  too 
ignorant  to  vote  intelligently,  and  become  mere  tools  in  the 
hands  of  others,  and  too  many  make  merchandise  of  their 
votes.  But  the  good  results  must  be  weighed  against  the  bad, 
and  the  balance  clearly  is  on  the  side  of  justice  to  those  who, 
but  for  their  voting  power,  would  be  too  often  the  objects  of 
injustice  and  too  weak  to  obtain  redress.  The  privilege  of 
suffrage  is  an  educator ;  the  education  may  not  be  thorough, 
but  it  is  better  than  none.  It  also  gives  the  voter  an  increase 
of  self-respect,  and  attaches  him  to  the  government  of  which 
he  feels  he  is  part.  It  is  true  that  universal  suffrage  creates 
the  professional  politician,  whose  trade  it  is  to  sell  nomina- 
tions and  buy  votes.  But  this  low  intriguer  is  known  to  be 
such.  He  is  a  mercenary  go-between,  who  is  usually  content 
if  he  can  get  money  and  keep  out  of  jail.  When  public  virtue 
is  aroused  it  puts  him  down  and  his  dupes  with  him.  We 
must  not  destroy  our  useful  institutions  because  vermin  infest 
them,  but  must  do  what  we  can  to  exterminate  the  pests. 

The  great  wealth  of  corporations  and  of  a  few  individuals  is 


WEALTH  DEVOTED  TO   PUBLIC   SERVICE.  325 

supposed  to  threaten  public  justice  and  official  integrity  by  re- 
sort to  bribery  and  corruption.    This  is  a  risk  we  are  forced  to 
take,  and  we  must  deal  with  it  the  best  we  can.     Public  ven- 
geance as  well  as  legal  punishment  are  sure  to  be  visited  upon 
the  official  who  is  detected  in  taking  bribes.     The  bribe  giver 
seems  to  be  more  leniently  dealt  with.     The  remedy  for  this 
evil  is  with  the  people.     Great  corporations  wisely  governed 
and  honestly  operated  are  public  benefactors.     They  place  the 
facilities  which  only  great  wealth  can  command  at  the  service 
of  every  individual  upon  his  payment  of  comparatively  a  small 
sum.     The  result  is  that  the  individual  of  moderate  means  can 
by  the  payment  of  small  sums  secure  for  his  personal  use  and 
convenience  the  advantages  which  the  wealth  of  others  afford. 
Great  fortunes  are  of  no  especial  use  to  their  owners,  whether 
corporations  or  individuals;  they  must  put  them  to  public  use 
for  the  public  benefit.    The  methods  of  the  age  no  longer  per- 
mit the  rich  to  have  an  excess  of  comfort  and  luxury  propor- 
tional to  their  excess  of  wealth.     Thus,  for  a  few  cents  per 
mile,  I  can  bring  to  my  service  in  my  personal  travel  all  the 
speed  and  safety  and  comfort  which  a  great  railroad  corpora- 
tion can  render.     The  owners  of  the  railroad  can  do  no  better. 
I  do  not  need  to  own  the  railroad,  I  only  need  to  own  the  few 
cents.     This  illustration  can  be  expanded  to  embrace  a  thou- 
sand other  instances,  and  should  make  us  thankful  that  though 
we  do  not  possess  wealth,  we  can  so  readily  and  cheaply  em- 
ploy all  we  reasonably  need  of  its  conveniences.     Thes6  ad- 
vantages are  peculiar  to  this  century. 

The  great  bulwark  of  the  people  against  the  danger  sug- 
gested, as  also  against  so  many  others,  is  the  judiciary.  To 
the  credit  of  our  people,  it  may  be  said  that  whatever  other 
evils  they  may  tolerate,  they  will  not  tolerate  a  corrupt  or 
incapable  judge.  The  public  sentiment  upon  this  question  is 
and  always  has  been  right.  No  matter  how  the  judges  may 
be  chosen,  judicial  impartiality  and  incorruptibility  have  been 
imperiously  and  universally  demanded.  The  demand  has  been 
supplied.  There  is  no  reason  to  suppose  that  the  demand  will 
ever  be  relaxed.  No  matter  what  the  previous  career  or  party 
association  of  the  judge  may  have  been,  he  must  rise  to  the 
inexorable  demands  of  the  judicial  office  for  perfect  integrity 


336  CONSTITUTIONAL  HISTORY. 

of  action.  He  may  be  weak,  but  he  must  be  honest.  There 
is  no  reason  to  doubt  that  the  high  standard  will  be  main- 
tained. It  will  probably  be  improved  with  the  steady  ad- 
vance in  the  science  of  jurisprudence.  Justice  therefore  will 
be  administered.  It  is  to  be  lamented  that  the  purity  and 
integrity  demanded  of  the  bench  have  not  been  as  inflexibly 
required  of  every  other  department  of  the  government.  We 
see  that  the  demand,  universally  made  and  never  relaxed,  re- 
sults in  a  supply  of  the  quality  demanded.  Plainly,  if  the 
legislative  and  executive  departments  fall  below  the  proper 
standard  of  integrity,  the  remedy  is  with  the  people. 

The  influx  of  immigration  is  great,  and  fears  are  expressed 
that  the  quality  of  our  population  will  be  reduced,  and  the 
danger  of  the  subversion  of  our  free  institutions  increased. 
Some  of  the  immigrants,  it  may  be,  are  fit  instruments  of 
mischief,  if  leaders  and  opportunity  offer.  The  fate  of  those 
who  perished  on  the  scaffold  at  Chicago  by  the  doom  of 
American  justice  warns  their  sympathizers  to  avoid  their  of- 
fence. But  we  should  not  judge  the  many  by  the  few.  The 
great  majority  of  immigrants  are  honest  people,  who  come 
hither  to  improve  their  fortunes  by  honest  industry.  They 
cannot  escape  the  influence  of  our  people,  government,  and 
institutions,  and  few  of  them  have  any  desire  to  do  so.  Their 
children  born  here  will  be  native  citizens.  Children  are  imi- 
tative beings,  and  cannot  avoid  acquiring  the  habits  and  ideas 
of  the  only  land  they  will  ever  know.  We  reject  the  Chinese 
because  our  country  does  not  assimilate  them  with  her  own 
people.  It  is  asserted  and  is  probably  true  that  the  English- 
speaking  and  Teutonic  races  have  similar  race  instincts,  and 
that  their  children  resume  in  America,  upon  association  with 
each  other  and  with  the  same  surroundings,  the  indistinguish- 
able characteristics  of  their  remote  common  ancestry.  We 
need  not  fear  the  children  of  these  immigrants  ;  they  will  be 
Americans  all,  bound  to  the  country  by  precisely  the  like 
ties  that  bound  Andrew  Jackson,  Chester  Allan  Arthur,  and 
Philip  H.  Sheridan.  With  every  passing  year  the  proportion 
of  native  to  foreign  born  increases.  Death  constantly  dimin- 
ishes the  number  of  foreigners,  and  birth  increases  the  num- 
ber of  natives.     Death,  birth,  and  time  will  surely  send  the 


CHURCH  AND  STATE.  337 

foreigners  far  to  the  rear  and  the  natives  far  to  the  front.  We 
need  not  fear  the  issue  when  the  three  most  constant  and 
potent  factors  of  nature  are  with  the  native  and  against  the 
foreigner. 

Some  good  people  fear,  or  seem  to  fear,  church  or  religious 
domination  in  the  interest  of  one  church  to  the  downfall  of 
our  liberties.  Nothing  is  more  natural  than  religious  jealousy. 
The  ignorant  believer  of  almost  any  religious  creed  is  apt  to 
be  bigoted  and  intolerant.  He  believes  he  is  right,  and  by 
consequence  others  are  wrong,  and  he  cannot  understand  why 
they  persist  in  their  errors.  He  is  prompt  to  impute  motives, 
and  thus  easily  becomes  jealous  of  danger  or  injury  when  none 
is  intended.  Almost  every  American  influence  opposes  the 
revival  of  religious  hostilities.  Church  and  state  are  divorced. 
This  is  not  a  mere  accident  of  our  civilization  and  forms  of 
government.  It  is  the  recognition  of  the  fundamental  dis- 
tinction between  things  eternal  and  spiritual  and  things  tem- 
poral and  worldly.  If  we  regard  both  church  and  state  as 
human  institutions,  then  the  divorce  rests  upon  the  proper 
division  of  labor,  and  the  separation  of  distinct  contrivances 
for  the  welfare  of  mankind.  Both  the  statesman  and  the 
divine  know  full  well  that  each  institution  is  the  more  easily 
and  efficiently  operated,  if  it  remains  unembarrassed  by  any 
entangling  relations  with  the  other. 

The  statesman  knows  that  liberty  in  matters  of  religious 
faith  and  worship  strengthens  the  state.  The  divine  knows 
that  the  protection  and  confidence  of  the  state  afford  the 
church  the  amplest  opportunity  to  exert  its  moral  and  spir- 
itual influence.  "  My  kingdom  is  not  of  this  world,"  was 
the  declaration  of  the  author  and  finisher  of  the  Christian 
faith,  and  "  Render  unto  Caesar  the  things  that  are  Caesar's," 
was  his  command.  Hence  separation  from  the  worldly  king- 
dom, but  submission  to  its  just  requirements,  would  seem  to 
be  the  indisputable  law  of  the  Christian  churches.  It  is  true 
that  history  and  the  existing  practice  in  other  lands  afford  ex- 
amples of  the  union  of  church  and  state,  and  argument  is  not 
wanting  to  urge  its  propriety  and  righteousness. 

In  ages  of  intellectual  darkness  and  of  personal  bondage, 
when  the  church  alone  held  the  remains  of  liberty,  learning, 

22 


338  CONSTITUTIONAL  HISTORY. 

and  humanity,  it  did  well  to  assume  authority  sufficient  to 
soften  the  severity  of  rulers  and  check  the  turbulence  of  men. 
It  was  so  far  a  human  institution  that  it  sought  to  keep  this 
authority.  Whatever  may  be  the  rule  in  other  countries,  the 
right  of  the  church  to  bear  civil  power  cannot  be  admitted  in 
this.  A  revolution  must  first  occur  in  the  sentiments  of  the 
people  respecting  the  true  function  of  the  church  as  an  agency 
for  the  welfare  of  mankind. 

There  may  be  here  and  there  symptoms  of  resistance  to 
universal  liberty  in  religious  faith  and  worship,  and  to  the 
divorce  between  church  and  state.  The  voice  of  the  sixteenth 
century  may  claim  a  hearing  in  the  nineteenth.  Old  phrases 
may  revive  and  be  repeated ;  they  are  the  lament  of  a  lost 
dominion.  No  church  can  prevent  its  American  communion 
from  perceiving  that  when  it  seeks  to  dictate  to  the  state  or 
usurp  control  over  it,  it  abandons  its  proper  functions.  Every 
native  American  acquires  something  of  an  American  political 
education.  The  church  that  is  wise  will  not  venture  to  dictate 
the  political  action  of  its  members,  so  long  as  such  action  is 
morally  permissible.  The  ultimate  result  of  such  attempted 
dictation  would  probably  be  the  triumph  of  the  American 
spirit  of  independence,  and  the  return  of  the  church  to  its 
appropriate  duties. 

Every  church,  whether  Catholic,  Protestant,  Hebrew,  or 
Pantheistic,  feels  the  need,  not  of  the  support,  but  of  the  pro- 
tection of  the  government.  It  has  long  been  accorded.  Any 
withdrawal  of  it  would  shock  the  universal  sentiment  of  jus- 
tice. Any  unfriendly  assault  by  the  government  upon  any 
one  church  would  be  construed  as  the  right  to  assault  any 
and  all  other  churches.  The  government  arrays  itself  against 
no  church.  It  does  try  to  suppress  the  polygamous  practices 
of  the  Mormons,  but  this  is  not  war  against  the  church  but 
against  the  offenders  within  it.  It  does  not  permit  one  who 
commits  an  offence  against  society  to  escape  because  his 
church  tolerates  or  invites  it.  The  liberty  and  security  of 
any  one  church  depend  upon  the  civil  equality  of  all  of  them. 

The  decay  of  public  virtue  will  result  in  the  ruin  of  any 
state.  This  is  our  greatest  danger.  If  it  shall  come,  its  ap- 
proaches will  be  slow  and  insidious,  resulting  in  a  real  revo- 


DECAY  IN  PUBLIC  VIRTUE.  339 

lution,  without  convulsion  or  rebellion,  without  any  special 
event  to  mark  its  beginning  and  progress,  but,  like  the  dry 
rot  in  oaken  timber,  destroying  the  quality  before  attacking 
the  outward  form,  and  leaving  worthlessness  where  worthi- 
ness is  most  needed.  Against  such  a  danger  a  pure  religion 
is  the  mightiest  bulwark.  Philosophy  offers  no  substitute, 
for  the  reason  that  not  one  tenth  of  one  per  centum  of  the 
people  have  the  mental  and  moral  qualities  to  enable  them 
to  climb  the  heights  of  philosophical  excellence  and  stay 
there.  Education  is  some  help  to  virtue,  certainly,  if  the 
education  is  in  virtue,  but  the  education  that  is  diffused 
among  the  masses  of  the  people  is  more  of  a  business  utility 
than  a  moral  help.  Men  are  and  ever  will  be  anxious  about 
the  future  life.  Science  and  historical  criticism  may  over- 
throw or  confirm  the  faith  of  the  few ;  it  will  never  touch  that 
of  the  many.  Evil  example  is  the  potent  cause  of  the  in- 
crease of  irreligion.  "  Because  iniquity  shall  abound  the  love 
of  many  shall  wax  cold."  Any  decline  in  the  vigor  and  un- 
selfishness of  the  churches  will  contribute  immensely  to  the 
decay  of  public  virtue.  There  probably  is  some  danger  that 
the  churches  will,  from  motives  of  policy,  from  dependence 
upon  the  support  of  the  people,  from  shrinking  back  from  a 
contest  with  the  particulars  of  immorality,  fall  somewhat  short 
of  their  high  calling.  Does  the  pulpit  never  falter  in  the  pres- 
ence of  the  pew  ?  Does  it  never  shrink  from  following  its 
convictions  respecting  the  accustomed  sins  of  its  people? 
Does  it  never  avoid  its  duty  with  regard  to  the  particulars  of 
evil  at  the  gate  of  its  own  sanctuary,  and  find  safety  and  re- 
pose in  denunciation  of  the  alleged  sins  of  other  times,  places, 
and  people  ?  And  if  so,  is  it  the  fault  of  the  churches  that 
it  is  so,  or  of  the  people  who  will  have  it  so?  Is  not  the 
fault  rather  with  the  system,  which  makes  the  supply  respond 
to  the  terms  of  the  demand  ?  Or  is  the  fault  so  slight  that 
any  vigorous  attempt  to  remedy  it  would  threaten  more  evil 
than  good  ? 

Be  this  as  it  may,  it  is  of  immense  importance  to  the  state 
that  the  churches  of  every  sect  and  denomination  should  suf- 
fer no  loss  of  their  power  and  influence  in  leading  the  people 
to  love  virtue  and  to  try  to  live  virtuously  despite  tempta- 


340 


CONSTITUTIONAL  HISTORY. 


tions,  and  despite  continual  shortcomings.  They  are  the  nat- 
ural leaders  and  teachers  in  the  methods  of  peace,  good  will, 
and  charity.  Every  one  blesses  the  consolers  of  the  afflicted, 
the  comforters  of  those  ready  to  perish,  the  true  pastors  and 
benefactors  of  the  people.  The  real  hope  of  the  churches  is 
in  the  gracious  favor  of  the  Almighty  One.  This,  the  changes 
in  civil  order  cannot  reach,  and  hence  cannot  touch  the  church 
in  its  true  sphere. 

We  may  reasonably  hope  that  the  opportunity  for  the  use- 
fulness of  the  churches  will  increase  and  be  improved.  The 
trend  of  Christian  people,  as  they  increase  in  intelligence,  is 
toward  Christian  unity  and  practical  Christianity.  As  the 
age  of  religious  wars  and  persecutions  recedes,  the  inherited 
antagonisms  between  rival  sects  slowly  fade  away.  As  all 
patts  of  the  earth  contribute  to  the  common  stock  of  wisdom, 
ignorant  prejudice  is  more  and  more  exposed  and  disarmed. 
Hence  the  Christian  churches  must  come  nearer  and  nearer 
together  in  things  essential,  as  the  procession  of  the  genera- 
tions moves  along.  It  will  naturally  follow  that  they  will 
more  and  more  cooperate  in  beneficent  labor  and  influence. 
Thus,  their  usefulness  will  be  greater,  the  antagonism  to 
them  less,  and  the  occasion  for  disparaging  criticism  less. 
Under  their  lead  and  ministration,  why  should  not  public  and 
private  virtue  have  all  the  incentive,  support,  and  nourishment 
which  a  pure  and  holy  religion  is  so  potent  to  afford  ?  Why 
should  not  public  and  private  sins  receive  that  just  and  dis- 
passionate exposure  and  rebuke  which  they  deserve,  and  which 
holy  men  can  so  fitly  administer  ? 

Corresponding  with  the  influence  of  religion  other  useful 
agencies  will  abound  and  cooperate  to  improve  and  help  man- 
kind. The  tone  of  the  press,  the  character  of  official  as  well 
as  of  private  utterances,  will  be  influenced  by  the  standard  of 
virtue  among  the  people.  Civilization  will  improve  or  de- 
generate accordingly.  The  assaults  upon  religion  will  be 
harmless  or  harmful  as  its  works  and  influence  are  or  are  not 
practically  powerful  for  good. 

It  is  in  the  purifying  influence  of  religion  that  we  must 
rest  our  hope  for  the  prevalence  and  continuance  of  that  vir- 
tue without  which  our   Constitution   and   forms  of   govern- 


THE  CONSTITUTION  A  BLESSING.  341 

ment  will  prove  to  be  skeletons,  unanimated  by  any  vital 
principle  of  usefulness. 

But  granting  the  requisite  virtue,  under  favor  of  Almighty 
God,  our  Constitution  is  and  will  remain  an  inestimable  bless- 
ing. It  secures  the  inalienable  rights  of  all  men  within  its 
jurisdiction  against  the  government  itself,  and  against  any 
and  all  masses  of  men,  here  or  anywhere.  It  fixes  these  in- 
alienable rights  as  impassable  limits  to  the  ebb  and  flow  of 
the  popular  tide.  Within  these  limits,  let  the  tide  rise  and 
fall  and  beat  and  surge.  Agitation  is  wholesome.  Perfect 
quiet  would  be  stagnation.  The  limits  are  fixed ;  it  is  im- 
probable that  any  change  will  weaken  or  remove  them,  and 
thus  the  rights  of  man  are  as  secure  as  his  own  keeping  can 
make  them. 


SUPPLEMENTAL  CHAPTER. 

Should  our  System  op  Government  be  tested  by  the  Quality 
OP  OUR  Statesmen?  —  Limited  and  Unlimited  Democracies. — 
Tendency  op  Great  Britain  to  Unlimited  Democracy. 

Mr.  Bryce,  in  the  "  American  Commonwealth,"  says  that 
"  in  the  free  countries  in  Europe  the  men  who  take  the  lead  in 
public  affairs  may  be  deemed  fair  specimens  of  its  best  talent 
and  character,  and  fair  types,  possibly,  of  the  virtues  of  the 
nation."  But  he  finds  that  such  is  not  the  case  in  America, 
and  he  regards  the  fact  as  unfortunate.  He  devotes  a  chapter 
to  "  Types  of  American  Statesmen  "  of  the  present  generation, 
and  he  finds  only  two :  one  the  shrewd,  cool,  hard-headed  man 
of  business,  usually  a  lawyer  or  a  man  in  commerce,  lacking 
imagination,  breadth  of  view,  but  with  a  tight  grip  of  facts, 
a  keen  insight  into  men,  and  the  tact  to  deal  with  them  ;  a 
ready  and  effective  but  not  a  polished  speaker,  able  for  the 
kind  of  work  which  needs  the  combination  of  a  sound  busi- 
ness head  and  the  power  of  working  with  others. 

The  other  type  is  the  man  who  has  the  gifts  of  popular 
oratory,  can  move  the  masses,  rule  party  committees,  carry 
conventions,  and  is  a  master  of  intrigue.  He  may  also  have 
the  higher  attributes  of  statesmanship,  but  his  methods  of  ac- 
tion are  unfavorable  to  their  development.  Mr.  Bryce  con- 
trasts these  types  unfavorably  with  the  higher  types  of  Euro- 
pean statesmen,  and  regrets  that  democracy,  which,  as  he  says, 
so  much  needs  great  men  to  lead  and  inspire  the  people,  should 
be  so  constituted  as  not  to  attract  or  develop  them.  With 
characteristic  mitigation  of  his  harsher  judgments,  he  adds, 
that  among  the  statesmen  of  the  first  of  the  American  types 
which  he  describes,  "there  are  always  ability  and  integrity 
sufficient  for  carrying  on  the  regular  business  of  the  country." 
He  devotes  a  chapter  to  the  question,  "  Why  the  best  men  do 
not  go  into  politics  "  in  America,  or,  as  he  elsewhere  expresses 


LIMITATIONS   OF  AMERICAN  POLITICS.  343 

it,  "  Why  the  best  men  do  not  come  to  the  top."  He  assigns 
the  following  reasons  :  The  want  of  a  social  and  commercial 
capital.  The  great  distances  between  the  capital  and  the 
homes  of  the  representatives. 

No  class  as  in  England  to  whom  political  life  comes  natu- 
rally with  a  sort  of  hereditary  right. 

The  representative  is  chosen  in  the  district  of  his  residence, 
and  if  he  cannot  be  elected  there,  no  other  district  is  open  to 
him.     Short  tenure  of  ofl&ce,  and  the  practice  of  rotation. 

Politics  is  less  interesting  than  in  Europe  because  legisla- 
tive authority  is  divided  between  the  nation  and  state,  and 
American  isolation  excludes  so  many  questions  of  foreign 
policy. 

Religion  is  outside  of  politics. 

There  are  no  classes,  and  therefore  no  class  issues. 

No  social  advantages  obtained  through  politics. 

The  attractive  fields  open  to  men  of  ability  in  great  busi- 
ness undertakings. 

The  disreputable  methods  of  partisan  politics,  and  the 
practice  of  selecting  candidates  because  of  their  availability 
instead  of  their  ability. 

The  reasons  adduced  by  Mr.  Bryce  are  forcible,  and  in  part 
explain  the  difference  between  the  American  statesmen,  taken 
as  a  class,  and  the  statesmen  of  the  free  countries  of  Europe. 
He  also  adds  that  questions  of  domestic  constitutional  change 
are  happily  absent.  This  is  an  important  consideration.  Of 
more  importance  is  the  fact  that  our  written  Constitution 
places  such  limitations  upon  our  public  oflficers,  and  especially 
our  representatives  in  Congress,  as  confine  them  to  a  narrow 
and  well  defined  sphere.  This  fact  tends  to  restrict  the  de- 
velopment of  great  statesmen,  and  perhaps  also  tends  to 
repel  some  men  of  the  first  ability  from  political  life. 

Mr.  Bryce's  statement  that  those  who  in  the  free  countries 
of  Europe  take  the  lead  in  public  affairs  are  of  the  best  talent 
is  no  doubt  true,  if  we  confine  our  examination  to  those  who 
are  attracted  to  political  careers.  The  thoroughly  able  and 
educated  men  to  whom  political  careers  offer  no  attractions, 
or  oppose  too  many  obstacles,  are  probably  as  numerous  there 
as  here.     The  men  who  succeed  in  a  political  career  there  are 


344  CONSTITUTIONAL  HISTORY. 

no  doubt  more  thoroughly  trained  for  it  than  with  us ;  they 
make  it  a  life  work,  and  because  of  their  equal  ability  with 
our  statesmen,  their  better  preliminary  training,  and  theit  con- 
stant service,  become  accomplished  to  a  degree  rarely  attained 
here. 

Besides,  the  need  of  such  men  is  far  greater  there  than  here. 
In  Great  Britain,  especially,  her  unwritten  constitution,  de- 
spite everything  said  in  its  favor,  is  a  constant  menace.  Par- 
liament governs,  and  is  unchecked  by  constitutional  restraint. 
It  is  a  constitutional  convention  always  in  existence,  and  with- 
out any  of  the  restraints  which  limit  such  a  convention  in  the 
United  States.  Here  a  constitutional  convention  can  only 
propose  constitutional  changes ;  it  cannot  make  them.  But 
in  Parliament  the  constitution  may  be  changed  at  any  time. 
Hence  the  pressing  need  that  the  ablest  and  wisest  men  in 
the  kingdom  should  supply  the  restraints  which  the  Constitu- 
tion omits.  Not  so  in  the  United  States.  All  our  represen- 
tatives in  Congress  have  to  do  is  to  operate  and  provide  for 
the  organism  as  it  exists,  and  within  the  prescribed  systems 
and  limitations.  The  men  who  made  our  Constitution  are 
still  wielding  an  influence  possibly  greater  than  that  of  all  our 
senators  and  representatives  in  Congress.  This  fact  may  de- 
prive us  of  living  heroes  as  the  objects  of  our  worship,  but 
with  the  example  of  France  before  us,  it  may  well  be  doubted 
whether  hero  worship  is  not  a  real  danger,  and  an  obstacle  to 
the  successful  government  of  the  people  by  the  people.  It 
certainly  is  when  the  people  worship  heroes  who  abuse  their 
power.  While  it  would  be  gratifying  to  our  national  pride, 
as  we  exhibit  ourselves  to  the  world,  to  be  represented  by  our 
ablest  men,  it  is  a  matter  for  profound  congratulation  that  it 
is  by  no  means  necessary. 

Honest  men  of  good  abilities  can  administer  our  govern- 
ment. Under  the  guide  and  limitations  of  the  Constitution, 
the  present  needs  and  methods  must  be  much  like  those  of 
the  past;  the  changes  required  by  development  and  growth 
are  in  degree  and  not  in  kind. 

The  like  remarks  may  be  applied  to  state  and  municipal 
governments.  Those  who  draw  the  constitution  of  a  state  or 
charter  of  a  city  are  the  real  governors.     They  prescribe  the 


SECURITY  BY  SYSTEM.  345 

plan  and  impose  the  conditions  of  subsequent  operations. 
They  are  the  architects,  the  men  now  in  oflSce  are  the  work- 
men. It  seems  to  be  a  waste  of  ability  to  reduce  the  archi- 
tect to  the  workman's  employment.  It  may  sometimes 
happen  that  we  suffer  because  the  materials  committed  to 
the  workman's  hands  become  the  spoil  of  his  cupidity  or  are 
injured  through  his  incompetency.  But  ordinary  prudence 
will  secure  trustworthy  and  competent  workmen. 

Mr.  Bryce  assumes  as  axiomatic  that  the  excellence  of  a 
system  of  democratic  government  may  be  tested  by  the  excel-, 
lence  of  the  statesmen  it  produces.  The  test  is  obviously  not 
applicable  to  the  United  States. 

We  may  admit  the  superiority  of  the  British  statesmen 
without  weakening  our  claim  to  the  superior  system.  Our 
system,  it  is  respectfully  submitted,  depends  as  little  as  pos- 
sible upon  the  ability  and  fidelity  of  our  statesmen,  and  can 
hardly  be  menaced  by  their  strife,  ambition,  or  combination. 
Our  Constitution  gives  to  the  people  the  written  title  to  good 
government,  and  gives  to  them  the  custody  of  the  title,  while 
the  people  of  Great  Britain  hold  their  title  upon  the  honor, 
fidelity,  and  ability  of  their  governors  in  Parliament. 

The  differences  between  the  average  types  of  American 
and  European  statesmen,  which  Mr.  Bryce  exhibits  as  defects 
indicating  defects  in  our  system,  may,  after  all,  be  real  advan- 
tages. Because  of  our  constitutional  limitations,  because  the 
sphere  of  political  life  and  of  statesmanship  is  narrow  and  of 
well-trodden  routine,  the  field  of  politics  opens  to  a  much 
larger,  and  it  may  be  admitted,  to  a  much  inferior  class  of 
persons  than  in  Europe.  The  conditions  here  are  such  that 
respectable  success  may  be  achieved  with  much  less  of  pre- 
liminary training,  if  only  native  ability  be  present.  The 
result  is  a  much  more  widely  diffused  interest  in  public  af- 
fairs, a  much  keener  individual  sense  of  identity  with  the 
nation  and  state,  a  much  greater  prevalence  of  ambition  to 
participate  in  official  life,  and  an  ever  present  stimulus  to 
young  men  of  capacity  to  deserve  well  of  their  fellow-men. 
However  low  may  be  the  condition  of  the  parents,  they  are 
not  without  hope  that  their  children  will  attain  to  a  better 
state  than  their  own.     If  every  mother  sometimes  thinks  that 


\^   CAUfO 


,^^t>^ 


346  CONSTITUTIONAL  HISTORY. 

her  boy  may  yet  become  President,  her  thought  does  not  merit 
a  sneer ;  it  is  a  part  of  the  sentiment  that  helps  to  make  the 
country  great,  happy,  and  hopeful. 

To  the  extent  that  our  system  extends  an  equal  right  to  all 
to  strive  to  attain  its  honors  and  participate  in  its  administra- 
tion, to  that  extent  does  it  contribute  to  extend  the  greatest 
possible  happiness  to  the  greatest  possible  number.  Our  ex- 
perience attests  the  fact  that  the  Constitution  supplies  in  a 
requisite  degree  of  safety  the  proper  safeguards  against  over- 
weening ambition  and  individual  lack  of  preliminary  training. 
In  other  words,  our  public  ofl&cers  are  supplied  with  a  chart 
of  duty  already  well  prepared.  It  may  be  said  that  no  Con- 
stitution can  supply  a  people  with  wisdom,  or  be  a  substitute 
for  it.  The  remark  has  no  relevancy  to  the  American  peo- 
ple, for  they  do  understand  their  Constitution,  they  absorb  its 
wisdom,  and  what  is  more,  respect  and  confide  in  it.  Its  gov- 
ernmental precepts  and  methods  are  part  and  parcel  of  their 
existence.  What  therefore  we  may  lose  in  the  greatness  and 
brilliancy  of  our  statesmen,  we  hope  we  gain  in  the  elevation 
and  happiness  of  the  masses  of  the  people. 

Democracy  is  reproached  by  philosophers  for  its  jealousy  of 
great  men.  An  unlimited  democracy  has  reason  to  fear  their 
ambition  ;  a  democracy  limited  by  a  written  constitution  has 
little  reason  to  fear  them,  and  therefore  little  reason  to  be 
jealous  of  them.  Great  statesmen  are  the  product  of  the 
great  crises  which  develop  and  prove  their  greatness.  Great 
statesmen  sometimes  cause  great  crises.  The  fewer  such 
schools  and  tests  the  better.  The  American  people  are  proud 
of  their  great  statesmen,  but  they  have  abundant  reason  to  be 
proud  of  their  system  which  renders  them  so  little  dependent 
upon  great  statesmen,  and  reasonably  safe  from  the  dangers 
of  great  crises  which  great  statesmen  may  bring  about,  if 
there  is  no  constitution  to  check  their  ambition. 

Mr.  Bryce  suggests  that  the  good  results  we  have  obtained 
under  our  system  of  government  are  largely  due  to  circum- 
stances which  are  no  part  of  the  system  itself,  but  indepen- 
dent of  it,  —  such  as  our  ancestry,  habits  of  order,  patience, 
hopefulness,  love  of  justice,  sobriety,  enterprise,  liberal  views, 
for  all  of  which  we  may  thank  our  English  mother  ;  that  our 


DEMOCRACY  LIMITED  AND  UNLIMITED.  347 

country  is  so  large  and  our  resources  so  great ;  that  the  bounty 
of  nature  has  compensated  for  the  waste  and  improvidence  of 
men  ;  that  we  are  caused  no  anxiety,  and  are  put  to  no  charges 
by  hostile  neighbors ;  and  that  we  could  not  help  but  do  well 
under  almost  any  system  of  government. 

Our  Constitution  does  not  deserve  the  disparagement  thus 
implied.  It  is  itself  as  much  the  product  of  all  the  circum- 
stances which  touched  our  ancestors  as  they  were  themselves. 
Its  framers  adapted  it  to  their  country  and  themselves,  as  they 
would  have  adapted  a  bridge  to  the  stream  it  was  to  span  and 
to  the  service  they  required  of  it.  The  experience  of  a  cen- 
tury tests  the  quality  of  our  Constitution  no  less  than  that  of 
our  people.  If  the  people  have  done  tolerably  well,  they 
have  done  so  with  the  help  of  the  Constitution,  not  in  spite 
of  it. 

Mr.  Bryce  cannot  refrain  from  trying  to  peer  into  the  fu- 
ture. Rash  as  the  attempt  may  seem  to  be,  it  is  quickly  par- 
doned, for  we  all  share  more  or  less  in  the  same  curiosity.  He 
cheers  us  with  his  happy  augury,  and  we  accept  his  pleasant 
prediction  of  continuing  prosperity  and  security.  As  we  go 
with  him  we  cannot  refrain  from  trying  to  peer  into  the  future 
of  Great  Britain.  The  United  States  will  probably  long 
preserve  her  Constitution  without  material  change.  Great 
Britain  discloses  signs  of  also  becoming  a  Democracy,  but  un- 
like the  United  States,  a  Democracy  without  a  written  con- 
stitution. 

If  we  pass  by  the  ten  amendments  adopted  in  compliance 
with  the  request  of  several  states  which  accompanied  their 
ratification  of  the  Constitution,  we  see  that  the  Constitution 
has  never  since  been  amended  except  to  remedy  such  of  its 
workings  as  excited  general  alarm.  We  may  thence  reason- 
ably infer  that  it  will  not  hereafter  be  amended  except  in  like 
cases.  The  United  States,  it  may  be  believed,  will  continue 
to  be  a  Democracy  limited  by  fundamental  law,  which  will 
not  be  changed  except  for  the  better. 

When  we  speak  of  the  government  and  institutions  of  Great 
Britain,  we  generally  regard  them  as  lifted  above  democratic 
touch  and  control,  and  as  vested  in  the  safe  keeping  of  the 
ablest  and  best  of  the  land.     The  masses  of  the  people  are 


348  CONSTITUTIONAL  HISTORY. 

not  brought  prominently  into  view ;  they  are  put  aside  as  the 
passive  objects  of  the  care  of  the  government,  and  in  no  im- 
portant sense  its  directors  or  participators  in  its  direction. 
Hence  a  comparison  of  the  public  men  of  the  two  nations  is, 
in  a  large  degree,  a  comparison  between  the  best  of  all  in  one 
country  and  the  average  of  all  in  the  other.  Such  a  com- 
parison is  not  a  fair  test  of  the  merits  of  the  two  systems  of 
government,  though  the  system  of  each  produces  the  public 
servants  it  exhibits  to  the  world. 

Whoever  undertakes  to  forecast  the  future  of  Great  Brit- 
ain must  take  into  account  the  fact  that  it  has  recently  so 
changed  its  constitution  as  to  permit  it  to  become  a  Democracy 
unlimited  by  fundamental  law.  By  the  Act  of  1884,  for  the 
"  Representation  of  the  People,"  suffrage  was  made  well  nigh 
universal.  There  is  now  one  elector  to  about  every  six  of  the 
entire  population.  Practically,  therefore,  the  masses  have 
the  power  to  control  the  election  of  members  of  Parlia- 
ment. Without  any  constitutional  check  over  Parliament, 
the  masses  need  only  to  assert  their  power,  to  bring  the  king- 
dom under  their  control.  They  do  not  yet  know  their  power. 
They  did  not  know  it  in  the  United  States  until  Jefferson 
began  their  instruction  and  Jackson  completed  it.  Will  there 
be  no  Jefferson  and  Jackson  in  Great  Britain  ?  It  is  not  diffi- 
cult to  suppose  that  there  will  be  a  Parliament  chosen  by  the 
masses  and  of  them.  But  will  not  the  House  of  Lords  remain 
as  a  conservative  force  ?  The  encroachments  of  Democracy 
may  not  be  swift  or  violent,  as  in  the  French  Revolution  ;  it 
will  comport  with  the  British  temper  to  make  them  tenta- 
tively and  gradually.  Conservative  restraints  may  be  pressed, 
a  little  here  and  there,  no  further  than  they  will  be  yielded, 
rather  than  provoke  a  rupture.  Separate  periods  of  time 
may  need  to  be  compared  to  ascertain  the  sum  of  the  almost 
imperceptible  changes.  It  is  possible  that  the  sum  will  swell 
until  the  House  of  Lords  and  every  vestige  of  royalty  will  be 
swept  away. 

That  there  will  be  henceforth  a  tendency,  never  retrograd- 
ing, towards  Democracy  in  Great  Britain,  it  seems  safe  to  as- 
sume. 

Happy  will  it  be  for  the  kingdom  and  for  mankind  if  British 


CONSTITUTIONAL  CHECKS  NECESSARY.  349 

Democracy,  somewhere  in  its  progress,  shall  imitate  American 
prudence,  and  in  the  sober  season  of  dispassionate  wisdom,  im- 
pose written  constitutional  checks  upon  its  own  excesses  and 
injustice,  and  intrust  the  keeping  of  the  charter  to  the  hands 
of  the  people,  above  and  beyond  control  or  change  by  those 
who  make  or  administer  the  laws.  For  well  nigh  seven  cen- 
turies the  people  have  preserved  Magna  Charta  against  the 
encroachments  of  royal  power.  Royal  power  has  no  Magna 
Charta  to  protect  itself.  The  people  need  a  Magna  Charta 
to  protect  themselves  from  themselves.  None  can  make  it  or 
preserve  it  so  well  as  themselves.  The  United  States  bears 
witness  to  Great  Britain,  and  to  the  world,  that  an  intelligent 
people  can  make  a  good  Constitution  and  preserve  it  even 
against  the  assaults  of  their  own  rashness.  Possibly  Great 
Britain  will  yet  profit  by  the  example  set  by  the  people,  who, 
escaping  from  her  household,  voluntarily  submitted  themselves 
to  a  system  which  preserves  to  them  the  best  of  the  laws  their 
mother  country  administered.  If  so,  then  he  who  in  some 
post- Victorian  age  shall  compare  the  people  of  the  two  coun- 
tries and  their  systems  and  institutions  will  not  inquire  which 
country  produces  the  larger  number  of  great  statesmen,  but 
under  which  government  are  the  happiness  and  equality  of 
all  the  people  best  secured  and  respected.  May  rivalry  with 
such  a  test  of  supremacy  continue  forever. 

If  constitutional  checks  shall  not  be  interposed  and  re- 
spected, Macaulay's  traveller  from  New  Zealand  may  yet  take 
his  stand  on  the  broken  arch  of  London  Bridge,  not  to  sketch 
the  ruins  of  St.  Paul's,  but  to  contemplate  the  ruins  of  a 
monarchy  wrought  by  an  unchecked  Democracy. 


APPENDIX. 


ARTICLES  OF  CONFEDERATION  AND  PERPETUAL  UNION 
BETWEEN  THE   STATES. 

To  ALL  TO  WHOM  THESE  PRESENTS  SHALL  COME,  WE  THE 
UNDERSIGNED     DELEGATES     OP     THE     STATES      AFFIXED      TO      OUR 

NAMES,  SEND  GREETING.  —  Whereas  the  Delegates  of  the  United 
States  of  America  in  Congress  assembled  did  on  the  15th  day  of  No- 
vember in  the  Year  of  our  Lord  1777,  and  in  the  Second  Year  of  the 
Independence  of  America  agree  to  certain  articles  of  Confederation 
and  perpetual  Union  between  the  States  of  New  Hampshire,  Massa- 
chusetts-bay, Rhode-island  and  Providence  Plantations,  Connecticut, 
New-York,  New-Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia, 
North-Carolina,  South-Carolina,  and  Georgia,  in  the  words  following, 
viz:  — 
"  Articles  op  confederation  and  perpetual  union  between 

THE  states  op  NEW-HAMPSHIRE,  MASSACHUSETTS-BAT,  RHODE- 
ISLAND  AND  PROVIDENCE  PLANTATIONS,  CONNECTICUT,  NEW- 
YORK,  NEW-JERSEY,  PENNSYLVANIA,  DELAWARE,  MARYLAND, 
VIRGINIA,    NORTH-CAROLINA,  SOUTH-CAROLINA,  AND    GEORGIA. 

Article  I.  The  Stile  of  this  confederacy  shall  be  "  The  United 
States  of  America." 

Article  II.  Each  state  retains  its  sovereignty,  freedom  and  inde- 
pendence, and  every  Power,  Jurisdiction  and  right,  which  is  not  by 
this  confederation  expressly  delegated  to  the  united  states,  in  congress 
assembled. 

Article  III.  The  said  states  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defence,  the 
security  of  their  Liberties,  and  their  mutual  and  general  welfare,  bind- 
ing themselves  to  assist  each  other,  against  all  force  offered  to,  or  at- 
tacks made  upon  them,  or  any  of  them,  on  account  of  religion,  sover- 
eignty, trade,  or  any  other  pretence  whatever. 

Article  IV.  The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  states  in  this 


852  APPENDIX. 

union,  the  free  inhabitants'of  each  of  these  states,  paupers,  vagabonds, 
and  fugitives  from  Justice  excepted,  shall  be  entitled  to  all  privileges 
and  immunities  of  free  citizens  in  the  several  states ;  and  the  people 
of  each  state  shall  have  free  ingress  and  regress  to  and  from  any  other 
state,  and  shall  enjoy  therein  all  the  privileges  of  trade  and  commerce, 
subject  to  the  same  duties,  impositions  and  restrictions  as  the  inhab- 
itants thereof  respectively,  provided  that  such  restriction  shall  not  ex- 
tend so  far  as  to  prevent  the  removal  of  property  imported  into  any 
state,  to  any  other  state  of  which  the  Owner  is  an  inhabitant ;  provided 
also  that  no  imposition,  duties  or  restriction  shall  be  laid  by  any 
state,  on  the  property  of  the  united  states,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason,  felony,  or  other 
high  misdemeanor  in  any  state,  shall  flee  from  Justice,  and  be  found 
in  any  of  the  united  states,  he  shall  upon  demand  of  the  Governor  or 
executive  power,  of  the  state  from  which  he  fled,  be  delivered  up  and 
removed  to  the  state  having  jurisdiction  of  his  offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  states  to  the 
records,  acts  and  judicial  proceedings  of  the  courts  and  magistrates  of 
every  other  state. 

Article  V.  For  the  more  convenient  management  of  the  general 
interest  of  the  united  states,  delegates  shall  be  annually  appointed  in 
such  manner  as  the  legislature  of  each  state  shall  direct,  to  meet  in 
congress  on  the  first  Monday  in  November,  in  every  year,  with  a 
power  reserved  to  each  state,  to  recal  its  delegates,  or  any  of  them, 
at  any  time  within  the  year,  and  to  send  others  in  their  stead,  for 
the  remainder  of  the  Year. 

No  state  shall  be  represented  in  congress  by  less  than  two^  nor  by 
more  than  seven  members  ;  and  no  person  shall  be  capable  of  being 
a  delegate  for  more  than  three  years  in  any  term  of  six  years  ;  nor 
shall  any  person,  being  a  delegate,  be  capable  of  holding  any  office 
under  the  united  states,  for  which  he,  or  another  for  his  benefit  re- 
ceives any  salary,  fees  or  emolument  of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  any  meeting  of  the 
states,  and  while  they  act  as  members  of  the  committee  of  the  states. 

In  determining  questions  in  the  united  states,  in  congress  assembled, 
each  state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  congress  shall  not  be  impeached 
or  questioned  in  any  Court,  or  place  out  of  congress,  and  the  members 
of  congress  shall  be  protected  in  their  persons  from  arrests  and  im- 
prisonments, during  the  time  of  their  going  to  and  from,  and  attend- 
ance on  congress,  except  for  treason,  felony,  or  breach  of  the  peace. 

Article  VI.  No  state  without  the  Consent  of  the  united  states  in 


APPENDIX.  353 

congress  assembled,  shall  send  any  embassy  to,  or  receive  any  embassy 
from,  or  enter  into  any  conference,  agreement,  alliance  or  treaty  with 
any  King  prince  or  state  ;  nor  shall  any  person  holding  any  office  of 
profit  or  trust  under  the  united  states,  or  any  of  them,  accept  of  any 
present,  emolument,  office  or  title  of  any  kind  whatever  from  any 
king,  prince  or  foreign  state ;  nor  shall  the  united  states  in  congress 
assembled,  or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  states  shall  enter  into  any  treaty,  confederation  or 
alliance  whatever  between  them,  without  the  consent  of  the  united 
states  in  congress  assembled,  specifying  accurately  the  purposes  for 
which  the  same  is  to  be  entered  into,  and  how  long  it  shall  continue. 

No  state  shall  lay  any  imposts  or  duties,  which  may  interfere  with 
any  stipulations  in  treaties,  entered  into  by  the  united  states  in  con- 
gress assembled,  with  any  king,  prince  or  state,  in  pursuance  of  any 
treaties  already  proposed  by  congress,  to  the  courts  of  France  and 
Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  state, 
except  such  number  only,  as  shall  be  deemed  necessary  by  the  united 
states  in  congress  assembled,  for  the  defence  of  such  state,  or  its  trade ; 
nor  shall  any  body  of  forces  be  kept  up  by  any  state,  in  time  of  peace, 
except  such  number  only,  as  in  the  judgment  of  the  united  states,  in 
congress  assembled,  shall  be  deemed  requisite  to  garrison  the  forts 
necessary  for  the  defence  of  such  state  ;  but  every  state  shall  always 
keep  up  a  well  regulated  and  disciplined  militia,  sufficiently  armed  and 
accoutred,  and  shall  provide  and  have  constantly  ready  for  use,  in 
public  stores,  a  due  number  of  field  pieces  and  tents,  and  a  proper 
quantity  of  arms,  ammunition  and  camp  equipage. 

No  state  shall  engage  in  any  war  without  the  consent  of  the  united 
states  in  congress  assembled,  unless  such  state  be  actually  invaded  by 
enemies,  or  shall  have  received  certain  advice  of  a  resolution  being 
formed  by  some  nation  of  Indians  to  invade  such  state,  and  the  danger 
is  so  imminent  as  not  to  admit  of  a  delay,  till  the  united  states  in  con- 
gress assembled  can  be  consulted :  nor  shall  any  state  grant  commis- 
sions to  any  ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal, 
except  it  be  after  a  declaration  of  war  by  the  united  states  in  congress 
assembled,  and  then  only  against  the  kingdom  or  state  and  the  sub- 
jects thereof,  against  which  war  has  been  so  declared,  and  under  such 
regulations  as  shall  be  established  by  the  united  states  in  congress 
assembled,  unless  such  state  be  infested  by  pirates,  in  which  case  ves- 
sels of  war  may  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the 
danger  shall  continue,  or  until  the  united  states  in  congress  assembled 
shall  determine  otherwise. 


354  APPENDIX. 

Article  VII.  When  land-forces  are  raised  by  any  state  for  the 
common  defence,  all  officers  of  or  under  the  rank  of  colonel,  shall  be 
appointed  by  the  legislature  of  each  state  respectively  by  whom  such 
forces  shall  be  raised,  or  in  such  manner  as  such  state  shall  direct,  and 
all  vacancies  shall  be  filled  up  by  the  state  which  first  made  the  ap- 
pointment. 

Article  VIII.  All  charges  of  war,  and  all  other  expenses  that 
shall  be  incurred  for  the  common  defence  or  general  welfare,  and  al- 
lowed by  the  united  states  in  congress  assembled,  shall  be  defrayed 
out  of  a  common  treasury,  which  shall  be  supplied  by  the  several  states, 
in  proportion  to  the  value  of  all  land  within  each  state,  granted  to  or 
surveyed  for  any  Person,  as  such  land  and  the  buildings  and  improve- 
ments thereon  shall  be  estimated  according  to  such  mode  as  the  united 
states  in  congress  assembled,  shall  from  time  to  time,  direct  and  ap- 
point. The  taxes  for  paying  that  proportion  shall  be  laid  and  levied 
by  the  authority  and  direction  of  the  legislatures  of  the  several  states 
within  the  time  agreed  upon  by  the  united  states  in  congress  assem- 
bled. 

Article  IX.  The  united  states  in  congress  assembled,  shall  have 
the  sole  and  exclusive  right  and  power  of  determining  on  peace  and 
war,  except  in  the  cases  mentioned  in  the  6th  article  —  of  sending  and 
receiving  ambassadors — entering  into  treaties  and  alliances,  provided 
that  no  treaty  of  commerce  shall  be  made  whereby  the  legislative 
power  of  the  respective  states  shall  be  restrained  from  imposing  such 
imposts  and  duties  on  foreigners,  as  their  own  people  are  subjected  to, 
or  from  prohibiting  the  exportation  or  importation  of  any  species  of 
goods  or  commodities  whatsoever  —  of  establishing  rules  for  deciding 
in  all  cases,  what  captures  on  land  or  water  shall  be  legal,  and  in  what 
manner  prizes  taken  by  land  or  naval  forces  in  the  service  of  the 
united  states  shall  be  divided  or  appropriated  —  of  granting  letters  of 
marque  and  reprisal  in  times  of  peace  —  appointing  courts  for  the  trial 
of  piracies  and  felonies  committed  on  the  high  seas  and  establishing 
courts  for  receiving  and  determining  finally  appeals  in  all  cases  of 
captures,  provided  that  no  member  of  congress  shall  be  appointed  a 
judge  of  any  of  the  said  courts. 

The  united  states  in  congress  assembled  shall  also  be  the  last  resort 
on  appeal  in  all  disputes  and  differences  now  subsisting  or  that  here- 
after may  arise  between  two  or  more  states  concerning  boundary,  juris- 
diction or  any  other  cause  whatever  ;  which  authority  shall  always  be 
exercised  in  the  manner  following.  Whenever  the  legislative  or  ex- 
ecutive authority  or  lawful  agent  of  any  state  in  controversy  with  an- 
other shall  present  a  petition  to  congress,  stating  the  matter  in  question 


( 


APPENDIX.  355 

and  praying  for  a  hearing,  notice  thereof  shall  be  given  by  order  of 
congress  to  the  legislative  or  executive  authority  of  the  other  state  in 
controversy,  and  a  day  assigned  for  the  appearance  of  the  parties  by 
their  lawful  agents,  who  shall  then  be  directed  to  appoint  by  joint 
consent,  commissioners  or  judges  to  constitute  a  court  for  hearing 
and  determining  the  matter  in  question  :  but  if  they  cannot  agree, 
congress  shall  name  three  persons  out  of  each  of  the  united  states,  and 
from  the  list  of  such  persons  each  party  shall  alternately  strike  out 
one,  the  petitioners  beginning,  until  the  number  shall  be  reduced  to 
thirteen  ;  and  from  that  number  not  less  than  seven,  nor  more  than 
nine  names  as  congress  shall  direct,  shall  in  the  presence  of  congress 
be  drawn  out  by  lot,  and  the  persons  whose  names  shall  be  so  drawn 
or  any  five  of  them,  shall  be  commissioners  or  judges,  to  hear  and 
finally  determine  the  controversy,  so  always  as  a  major  part  of  the 
judges  who  shall  hear  the  cause  shall  agree  in  the  determination  :  and 
if  either  party  shall  neglect  to  attend  at  the  day  appointed,  without 
showing  reasons,  which  congress  shall  judge  sufficient,  or  being  present 
shall  refuse  to  strike,  the  congress  shall  proceed  to  nominate  three 
persons  out  of  each  state,  and  the  secretary  of  congress  shall  strike  in 
behalf  of  such  party  absent  or  refusing;  and  the  judgment  and  sen- 
tence of  the  court  to  be  appointed,  in  the  manner  before  prescribed, 
shall  be  final  and  conclusive  ;  and  if  any  of  the  parties  shall  refuse  to 
submit  to  the  authority  of  such  court,  or  to  appear  or  defend  their 
claim  or  cause,  the  court  shall  nevertheless  proceed  to  pronounce  sen- 
tence, or  judgment,  which  shall  in  like  manner  be  final  and  decisive, 
the  judgment  or  sentence  and  other  proceedings  being  in  either  case 
transmitted  to  congress,  and  lodged  among  the  acts  of  congress  for  the 
security  of  the  parties  concerned  :  provided  that  every  commissioner, 
before  he  sits  in  judgment,  shall  take  an  oath  to  be  administered  by 
one  of  the  judges  of  the  supreme  or  superior  court  of  the  state,  where 
the  cause  shall  be  tried,  "  well  and  truly  to  hear  and  determine  the 
matter  in  question,  according  to  the  best  of  his  judgment,  without 
favour,  affection  or  hope  of  reward  : "  provided  also  that  no  state  shall 
be  deprived  of  territory  for  the  benefit  of  the  united  states. 

All  controversies  concerning  the  private  right  of  soil  claimed  under 
different  grants  of  two  or  more  states,  whose  jurisdictions  as  they  may 
respect  such  lands,  and  the  states  which  passed  such  grants  are  ad- 
justed, the  said  grants  or  either  or  them  being  at  the  same  time  claimed 
to  have  originated  antecedent  to  such  settlement  of  jurisdiction,  shall 
on  the  petition  of  either  party  to  the  congress  of  the  united  states,  be 
finally  determined  as  near  as  may  be  in  the  same  manner  as  is  before 
prescribed  for  deciding  disputes  respecting  territorial  jurisdiction  be- 
tween different  states. 


356  APPENDIX. 

The  united  states  in  congress  assenibled  shall  also  have  the  sole  and 
exclusive  right  and  power  of  regulating  the  alloy  and  value  of  coin 
struck  by  their  own  authority,  or  by  that  of  the  respective  states  — 
fixing  the  standard  of  weights  and  measures  throughout  the  United 
States  —  regulating  the  trade  and  managing  all  affairs  with  the  In- 
dijtns,  not  members  of  any  of  the  states,  provided  that  the  legislative 
right  of  any  state  within  its  own  limits  be  not  infringed  or  violated 
—  establishing  or  regulating  post-offices  from  one  state  to  another, 
throughout  all  the  united  states,  and  exacting  such  postage  on  the 
papers  passing  thro'  the  same  as  may  be  requisite  to  defray  the  ex- 
penses of  the  said  office  —  appointing  all  officers  of  the  land  forces,  in 
the  service  of  the  united  states,  excepting  regimental  officers  —  ap- 
pointing all  the  officers  of  the  naval  forces,  and  commissioning  all 
officers  whatever  in  the  service  of  the  united  states  —  making  rules 
for  the  government  and  regulation  of  the  said  land  and  naval  forces, 
and  directing  their  operations. 

The  united  states  in  congress  assembled  shall  have  authority  to  ap- 
point a  committee,  to  sit  in  the  recess  of  congress,  to  be  denominated 
*'  A  Committee  of  the  States,"  and  to  consist  of  one  delegate  from  each 
state  ;  and  to  appoint  such  other  committees  and  civil  officers  as  may 
be  necessary  for  managing  the  general  affairs  of  the  united  states  under 
their  direction  —  to  appoint  one  of  their  number  to  preside,  provided 
that  no  person  be  allowed  to  serve  in  the  office  of  president  more  than 
one  year  in  any  term  of  three  years  ;  to  ascertain  the  necessary  sums 
of  Money  to  be  raised  for  the  service  of  the  united  states,  and  to  ap- 
propriate and  apply  the  same  for  defraying  the  public  expenses  —  to 
borrow  money,  or  emit  bills  on  the  credit  of  the  united  states,  trans- 
mitting every  half  year  to  the  respective  states  an  account  of  the  sums 
of  money  so  borrowed  or  emitted,  —  to  build  and  equip  a  navy  —  to 
agree  upon  the  number  of  land  forces,  and  to  make  requisitions  from 
each  state  for  its  quota,  in  proportion  to  the  number  of  white  inhab- 
itants in  such  state  ;  which  requisition  shall  be  binding,  and  thereupon 
the  legislature  of  each  state  shall  appoint  the  regimental  officers,  raise 
the  men  and  cloath,  arm  and  equip  them  in  a  soldier  like  manner,  at 
the  expense  of  the  united  states ;  and  the  officers  and  men  so  cloathed, 
armed  and  equipped  shall  march  to  the  place  appointed,  and  within 
the  time  agreed  on  by  the  united  states  in  congress  assembled :  But 
if  the  united  states  in  congress  assembled  shall,  on  consideration  of 
circumstances  judge  proper  that  any  state  should  not  raise  men,  or 
should  raise  a  smaller  number  than  its  quota,  and  that  any  other  state 
should  raise  a  greater  number  of  men  than  the  quota  thereof,  such 
extra  number  shall  be  raised,  officered,  cloathed,  armed  and  equipped 


APPENDIX.  357 

in  the  same  manner  as  the  quota  of  such  state,  unless  the  legislature 
of  such  state  shall  judge  that  such  extra  number  cannot  be  safely 
spared  out  of  the  same,  in  which  case  they  shall  raise  officer,  cloath, 
arm  and  equip  as  many  of  such  extra  number  as  they  judge  can  be 
safely  spared.  And  the  officers  and  men  so  cloathed,  armed  and 
equipped,  shall  march  to  the  place  appointed,  and  within  the  time 
agreed  on  by  the  united  states  in  congress  assembled. 

The  united  states  in  congress  assembled  shall  never  engage  in  a  war, 
nor  grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter 
into  any  treaties  or  alliances,  nor  coin  money,  nor  regulate  the  value 
thereof,  nor  ascertain  the  suras  and  expenses  necessary  for  the  defence 
and  welfare  of  the  united  states,  or  any  of  them,  nor  emit  bills,  nor 
borrow  money  on  the  credit  of  the  united  states,  nor  appropriate 
money,  nor  agree  upon  the  number  of  vessels  of  war,  to  be  built  or 
purchased,  or  the  number  of  land  or  sea  forces  to  be  raised,  nor  ap- 
point a  commander  in  chief  of  the  army  or  navy,  unless  nine  states 
assent  to  the  same :  nor  shall  a  question  on  any  other  point,  except 
for  adjourning  from  day  to  day  be  determined,  unless  by  the  votes 
of  a  majority  of  the  united  states  in  congress  assembled. 

The  Congress  of  the  united  states  shall  have  power  to  adjourn  to 
any  time  within  the  year,  and  to  any  place  within  the  united  states,  so 
that  no  period  of  adjournment  be  for  a  longer  duration  than  the  space 
of  six  months,  and  shall  publish  the  Journal  of  their  proceedings 
monthly,  except  such  parts  thereof  relating  to  treaties,  alliances  or 
military  operations,  as  in  their  judgment  require  secrecy ;  and  the 
yeas  and  nays  of  the  delegates  of  each  state  on  any  question  shall  be 
entered  on  the  Journal,  when  it  is  desired  by  any  delegate  ;  and  the 
delegates  of  a  state,  or  any  of  them,  at  his  or  their  request  shall  be 
furnished  with  a  transcript  of  the  said  Journal,  except  such  parts  as 
are  above  excepted,  to  lay  before  the  legislatures  of  the  several  states. 

Article  X.  The  committee  of  the  states,  or  any  nine  of  them, 
shall  be  authorized  to  execute,  in  the  recess  of  congress,  such  of  the 
powers  of  congress  as  the  united  states  in  congress  assembled,  by  the 
consent  of  nine  states,  shall  from  time  to  time  think  expedient  to  vest 
them  with ;  provided  that  no  power  be  delegated  to  the  said  committee, 
for  the  exercise  of  which,  by  the  articles  of  confederation,  the  voice  of 
nine  states  in  the  congress  of  the  united  states  assembled  is  requisite. 

Article  XI.  Canada  acceding  to  this  confederation,  and  joining 
in  the  measures  of  the  united  states,  shall  be  admitted  into,  and  en- 
titled to  all  the  advantages  of  this  union  :  but  no  other  colony  shall 
be  admitted  into  the  same,  unless  such  admission  be  agreed  to  by  nine 
states. 


358  APPENDIX. 

Article  XII.  All  bills  of  credit  emitted,  monies  borrowed  and 
debts  contracted  by,  or  under  the  authority  of  congress,  before  the 
assembling  of  the  united  states,  in  pursuance  of  the  present  confed- 
eration, shall  be  deemed  and  considered  as  a  charge  against  the  united 
states,  for  payment  and  satisfaction  whereof  the  said  united  states,  and 
the  public  faith  are  hereby  solemnly  pledged. 

Article  XIII.  Every  state  shall  abide  by  the  determinations  of 
the  united  states  in  congress  assembled,  on  all  questions  which  by  this 
confederation  is  submitted  to  them.  And  the  Articles  of  this  confed- 
eration shall  be  inviolably  observed  by  every  state,  and  the  union 
shall  be  perpetual ;  nor  shall  any  alteration  at  any  time  hereafter  be 
made  in  any  of  them  ;  unless  such  alteration  be  agreed  to  in  a  congress 
of  the  united  states,  and  be  afterwards  confirmed  by  the  legislatures 
of  every  state. 

And  Whereas  it  hath  pleased  the  Great  Governor  of  the  World  to 
incline  the  hearts  of  the  legislatures  we  respectfully  represent  in  con- 
gress, to  approve  of,  and  to  authorize  us  to  ratify  the  said  articles  of 
confederation  and  perpetual  union.  Know  Ye  that  we  the  under- 
signed delegates,  by  virtue  of  the  power  and  authority  to  us  given  for 
that  purpose,  do  by  these  presents,  in  the  name  and  in  behalf  of  our 
respective  constituents,  fully  and  entirely  ratify  and  confirm  each  and 
every  of  the  said  articles  of  confederation  and  perpetual  union,  and 
all  and  singular  the  matters  and  things  therein  contained :  And  we 
do  further  solemnly  plight  and  engage  the  faith  of  our  respective  con- 
stituents, that  they  shall  abide  by  the  determinations  of  the  united 
states  in  congress  assembled,  on  all  questions,  which  by  the  said  con- 
federation are  submitted  to  them.  And  that  the  articles  thereof  shall 
be  inviolably  observed  by  the  states  we  respectively  represent,  and 
that  the  union  shall  be  perpetual.  In  witness  whereof  we  have  here- 
unto set  our  hands  in  Congress.  Done  at  Philadelphia  in  the  state 
of  Pennsylvania  the  9th  Day  of  July  in  the  Year  of  our  Lord,  1778, 
and  in  the  3d  year  of  the  Independence  of  America. 

,    .  ,  -R  ^,  ,,  '^^.^^     ]^^°T«?'  \  On  the  part  and  behalf  of  the 

Josiah  Bartlett,  {778       ""  \     ^'^'^'  ^^  ^'^  Hampshire. 


I 


John  Hancock,  Francis  Dana  )  On  the  part  and  Whalf  of  th 

fZt,ttZl  laZdH^Jl^n,        \  state  of%as,aeh„seUs-Ba, 


William  EUery,  John  Collins,  )  On  the  part  and  behalf  of  the 

Henry  Marchant,  /        state  of  Rhode-Island  and 

)        Providence  Plantations. 

Roger  Sherman  Titus  Hosmer.  i  q^  ^^^  ^^^  ^^^^^^  ^f  ^^^ 

Samuel  Huntington,  Andrew  Adam,  >         ^..\^    ^  r'^r..,^»»,-»Mt 

Oliver  Wolcott,  )         '^^^^  ^^  Connecticut. 

Jas  Duane,  William  Duer,  )  On  the  part  and  behalf  of  the 

Fras  Lewis,  Gouv^  Morris,  )  state  of  New- York. 


APPENDIX.  359 

^  On  the  part  and  behalf  of  the 
Jn*  Witherspoon,  Nath'  Scuddef,  >    state  of  New-Jersey,  Novem- 

)    ber  26th,  1778- 
Rob'  Morris,  William  Clmgan,     )  q^  ^^^  ^^^  ^^^^^^  ^^  ^^^ 

JoTi^attith,  '12^^:^1778.      \       staJof  Pennsylvania. 

Tho.  M'Kean,  Feb.  12,  1779.  Nicholas  Van  Dyke,  )  On  the  part  and  behalf  of  the 
John  Dickinson,  May  5, 1779,  )  state  of  Delaware. 

John  Hanson,  Daniel  Carroll,  )  On  the  part  and  behalf  of  the 

March  1st,  1781,  March  1st,  1781,    J  state  of  Maryland. 


?ihM?«?.7  ^'''  il^A'"^  T  vi,.f...  I  On  the  part  and  behalf  of  the 

John  Banister,  Francis    Lightfoot  >  ^       ,  Viro-inia 

Thomas  Adams,  Lee,  )  state  ot  Virginia. 

John  Penn,  Corns  Harnett,  )  On  the  part  and  behalf  of  the 

July  21st,  1778,  Jn°  Williams,  )      state  of  North-Carolina. 

Henry  Laurens  Rich^  Hutson  )  ^    ^  ^^^  ^^^^^  ^^  ^^ 

S^th^ws7     ^^^  Heyward,jun.  ^      ^^^^/^^  South-Carolina. 

Jn°  Walton,  EdV*  Telfair,  7  On  the  part  and  behalf  of  the 

24th  July,  1778,  Edw*  Langworthy,  )  state  of  Georgia.' 


CONSTITUTION  OF  THE  UNITED  STATES. 

We,  the  people  of  the  United  States,  in  order  to  form  a  more  per- 
fect union,  establish  justice,  insure  domestic  tranquillity,  provide  for 
the  common  defence,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain  and  es- 
tablish this  constitution  for  the  United  States  of  America. 

ARTICLE  I. 
Section  1. 
1.  All  legislative  powers  herein  granted  shall  be  vested  in  a  con- 
gress of  the  United  States,  which  shall  consist  of  a  senate  and  house 
of  representatives. 

Section  2. 

1.  The  house  of  representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  states ;  and  the 
electors  in  each  state  shall  have  the  qualifications  requisite  for  elec- 
tors of  the  most  numerous  branch  of  the  state  legislature. 

2.  No  person  shall  be  a  representative  who  shall  not  have  attained 
to  the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
that  state  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  states  which  may  be  included  within  this  Union,  according  to 


360  APPENDIX. 

their  respective  numbers,  which  shall  be  determined  by  adding  to  the 
whole  number  of  free  persons,  including  those  bound  to  service  for  a 
term  of  years,  and  excluding  Indians  not  taxed,  three-fifths  of  all 
other  persons.  The  actual  enumeration  shall  be  made  within  three 
years  after  the  first  meeting  of  the  congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as  they 
shall  by  law  direct.  The  number  of  representatives  shall  not  exceed 
one  for  every  thirty  thousand,  but  each  state  shall  have  at  least  one 
representative ;  and  until  such  enumeration  shall  be  made,  the  state 
of  New  Hampshire  shall  be  entitled  to  choose  three ;  Massachusetts, 
eight ;  Rhode  Island  and  Providence  Plantations,  one  ;  Connecticut, 
five;  New- York,  six;  New  Jersey,  four;  Pennsylvania,  eight;  Dela- 
ware, one ;  Maryland,  six  ;  Virginia,  ten  ;  North  Carolina,  five ;  South 
Carolina,  five  ;  and  Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from  any  state, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

5.  The  house  of  representatives  shall  choose  their  speaker  and  other 
officers,  and  shall  have  the  sole  power  of  impeachment. 

Section  3. 

1.  The  senate  of  the  United  States  shall  be  composed  of  two  sena- 
tors from  each  state,  chosen  by  the  legislature  thereof,  for  six  years  ; 
and  each  senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  consequence  of  the 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three 
classes.  The  seats  of  the  senators  of  the  first  class  shall  be  vacated 
at  the  expiration  of  the  second  year,  of  the  second  class  at  the  ex- 
piration of  the  fourth  year,  and  of  the  third  class  at  the  expiration  of 
the  sixth  year,  so  that  one-third  may  be  chosen  every  second  year ; 
and  if  vacancies  happen,  by  resignation  or  otherwise,  during  the  re- 
cess of  the  legislature  of  any  state,  the  executive  thereof  may  make 
temporary  appointments  until  the  next  meeting  of  the  legislature, 
which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  state  for 
which  he  shall  be  chosen. 

4.  The  vice-president  of  the  United  States  shall  be  president  of  the 
senate,  but  shall  have  no  vote  unless  they  be  equally  divided. 

5.  The  senate  shall  choose  their  other  officers,  and  also  a  president 
pro  tempore  in  the  absence  of  the  vice-president,  or  when  he  shall  ex- 
ercise the  office  of  president  of  the  United  States. 


APPENDIX.  361 

6.  The  senate  shall  have  the  sole  power  •to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  president  of  the  United  States  is  tried,  the  chief  justice 
shall  preside ;  and  no  person  shall  be  convicted  without  the  concur- 
rence of  two-thirds  of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and  enjoy  any  of- 
fice of  honor,  trust  or  profit  under  the  United  States ;  but  the  party 
convicted  shall,  nevertheless,  be  liable  and  subject  to  indictment,  trial, 
judgment  and  punishment,  according  to  law. 

Section  4. 

1.  The  times,  places  and  manner  of  holding  elections  for  senators 
and  representatives  shall  be  prescribed  in  each  state  by  the  legisla- 
ture thereof;  but  the  congress  may  at  any  time  by  law  make  or  alter 
such  regulations,  except  as  to  the  place  of  choosing  senators. 

2.  The  congress  shall  assemble  at  least  once  in  every  year ;  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless  they 
shall  by  law  appoint  a  different  day. 

Section  5. 

1.  Each  house  shall  be  the  judge  of  the  elections,  returns  and 
qualifications  of  its  own  members,  and  a  majority  of  each  shall  con- 
stitute a  quorum  to  do  business ;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner  and  under  such  penalties  as  each 
house  may  provide. 

2.  Each  house  may  determine  the  rule  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and  with  the  concurrence  of  two- 
thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may,  in  their 
judgment,  require  secrecy ;  and  the  yeas  and  nays  of  the  members 
of  either  house  on  any  question  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal. 

4.  Neither  house,  during  the  session  of  congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any 
other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

Section  6. 

1.  The  senators  and  representatives  shall  receive  a  compensation 
for  their  services,  to  be  ascertained  by  law,  and  paid  out  of  the  treas- 


362  APPENDIX. 

ury  of  the  United  States.  They  shall,  in  all  cases  except  treason, 
felony  and  breach  of  the  peace,  be  privileged  from  arrest  during  their 
attendance  at  the  session  of  their  respective  houses,  and  in  going  to 
and  returning  from  the  same ;  and  for  any  speech  or  debate  in  either 
house  they  shall  not  be  questioned  in  any  other  place. 

2.  No  senator  or  representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority  of 
the  United  States,  which  shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased,  during  such  time  ;  and  no  person 
holding  any  office  under  the  United  States  shall  be  a  member  of  either 
house  during  his  continuance  in  office. 

Section  7.  ' 

1.  All  bills  for  raising  revenue  shall  originate  in  the  house  of  rep- 
resentatives ;  but  the  senate  may  propose  or  concur  with  amendments 
as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  house  of  representa- 
tives and  the  senate  shall,  before  it  becomes  a  law,  be  presented  to 
the  president  of  the  United  States  ;  if  he  approve,  he  shall  sign  it ; 
but  if  not,  he  shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated ;  who  shall  enter  the  objections  at  large 
on  their  journal,  and  proceed  to  reconsider  it.  If,  after  such  recon- 
sideration, two-thirds  of  that  house  shall  agree  to  pass  the  bill,  it  shall 
be  sent,  together  with  the  objections,  to  the  other  house,  by  which  it 
shall  likewise  be  reconsidered ;  and,  if  approved  by  two-thirds  of 
that  house,  it  shall  become  a  law.  But  in  all  cases,  the  votes  of  both 
houses  shall  be  determined  by  yeas  and  nays,  and  the  names  of  the 
persons  voting  for  and  against  the  bill  shall  be  entered  on  the  journal 
of  each  house  respectively.  If  any  bill  shall  not  be  returned  by  the 
president  within  ten  days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  same  shall  be  a  law  in  like  manner  as  if  he  had 
signed  it,  unless  the  congress,  by  their  adjournment,  prevent  it§  re- 
turn, in  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution  or  vote,  to  which  the  concurrence  of  the 
senate  and  house  of  representatives  may  be  necessary  (except  on  a 
question  of  adjournment),  shall  be  presen!ed  to  the  president  of  the 
United  States ;  and,  before  the  same  shall  take  effect,  shall  be  ap- 
proved by  him ;  or,  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  senate  and  house  of  representatives,  according  to 
the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 


APPENDIX.  363 

Section  8. 
The  congress  shall  have  power  : 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises  ;  to  pay  the 
debts  and  provide  for  the  common  defence  and  general  welfare  of  the 
United  States ;  but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States. 

2.  To  borrow  money  on  the  credit  of  the  United  States. 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the  sev- 
eral states,  and  with  the  Indian  tribes. 

4.  To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  States. 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
and  fix  the  standard  of  weights  and  measures. 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States. 

7.  To  establish  post-offices  and  post-roads. 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  securing 
for  limited  times,  to  authors  and  inventors,  the  exclusive  right  to  their 
respective  writings  and  discoveries. 

9.  To  constitute  tribunals  inferior  to  the  supreme  court ;  to  define 
and  i)unish  piracies  and  felonies  committed  on  the  high  seas,  and  of- 
fences against  the  law  of  nations. 

10.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water. 

11.  To  raise  and  support  armies  ;  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years. 

12.  To  provide  and  maintain  a  navy. 

13.  To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces. 

14.  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of 
the  Union,  suppress  insurrections,  and  repel  invasions. 

15.  To  provide  for  organizing,  arming  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the  ser- 
vice of  the  United  States  ;  reserving  to  the  states  respectively  the  ap- 
pointment of  the  officers  and  the  authority  of  training  the  militia  ac- 
cording to  the  discipline  prescribed  by  congress. 

16.  To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  niiles  square)  as  may,  by  cession  of 
particular  states,  and  the  acceptance  of  congress,  become  the  seat  of 
government  of  the  United  States  ;  and  to  exercise  like  authority  over 
all  places  purchased,  by  the  consent  of  the  legislature  of  the  state  in 


364  APPENDIX. 

which  the  same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals, 
dockyards,  and  other  needful  buildings  ;  and 

17.  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  constitution  in  the  government  of  the  United  States,  or 
in  any  department  or  officer  thereof. 

Section  9. 

1.  The  migration  or  importation  of  such  persons  as  any  of  the  states 
now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by 
the  congress  prior  to  the  year  one  thousand  eight  hundred  and  eight ; 
but  a  tax  or  duty  may  be  imposed  on  such  importation  not  exceeding 
ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  oi  habeas  corpus  shall  not  be  suspended, 
unless  when,  in  cases  of  rebellion  or  invasion,  the  public  safety  may 
require  it. 

3.  No  bill  of  attainder,  or  ex  post  facto  law  shall  be  passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  propor- 
tion to  the  census  or  enumeration  herein  before  directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  any  articles  exported  from  any 
state.  No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  state  over  those  of  another ;  nor  shall 
vessels  bound  to  or  from  one  state  be  obliged  to  enter,  clear  or  pay 
duties  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury  but  in  consequence 
of  appropriations  made  by  law  ;  and  a  regular  statement  and  account 
of  the  receipts  and  expenditures  of  all  public  money  shall  be  published 
from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United  States ;  and 
no  person  holding  any  office  of  profit  or  trust  under  them  shall,  with- 
out the  consent  of  the  congress,  accept  of  any  present,  emolument, 
office,  or  title  of  any  kind  whatever,  from  any  king,  prince,  or  foreign 

state. 

Section  10. 

1.  No  state  shall  enter  into  any  treaty,  alliance  or  confederation ; 
grant  letters  of  marque  and  reprisal ;  coin  money  ;  emit  bills  of  credit ; 
make  any  thing  but  gold  and  silver  coin  a  tender  in  payment  of  debts ; 
pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  ob- 
ligation of  contracts  ;  or  grant  any  title  of  nobility. 

2.  No  state  shall,  without  the  consent  of  the  congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws,  and  the  net  produce  of  all 


APPENDIX.  365 

duties  and  imposts  laid  by  any  state  on  imports  or  exports  shall  be 
for  the  use  of  the  treasury  of  the  United  States,  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  congress..  No 
state  shall,  without  the  consent  of  the  congress,  lay  any  duty  of  ton- 
nage, keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  state,  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay. 

ARTICLE  II. 

Section  1. 

1.  The  executive  power  shall  be  vested  in  a  president  of  the  United 
States  of  America.  He  shall  hold  his  ofRce  during  the  term  of  four 
years  ;  and,  together  with  the  vice-president  chosen  for  the  same 
term,  be  elected  as  follows  : 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors  equal  to  the  whole  number 
of  senators  and  representatives  to  which  the  state  may  be  entitled  in 
the  congress ;  but  no  senator  or  representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an 
elector. 

3.  [The  electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhab- 
itant of  the  same  state  with  themselves.  And  they  shall  make  a  list  of 
all  the  persons  voted  for,  and  of  the  number  of  votes  for  each;  which 
list  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  gov- 
ernment of  the  United  States,  directed  to  the  president  of  the  senate. 
The  president  of  the  senate  shall,  in  the  presence  of  the  senate  and 
house  of  representatives,  open  all  the  certificates,  and  the  votes  shall 
then  be  counted.  The  person  having  the  greatest  number  of  votes 
shall  be  the  president,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed ;  and  if  there  be  more  than  one  who 
have  such  majority,  and  have  an  equal  number  of  votes,  then  the 
house  of  representatives  shall  immediately  choose,  by  ballot,  one  of 
them  for  president ;  and  if  no  person  have  a  majority,  then,  from  the 
five  highest  on  the  list,,  the  said  house  shall,  in  like  manner,  choose 
the  president.  But  in  choosing  the  president,  the  vote  shall  be  taken 
by  states,  the  representation  from  each  state  having  one  vote ;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or  members  from 
two-thirds  of  the  states,  and  a  majority  of  all  the  states  shall  be  nec- 
essary to  a  choice.  In  every  case,  after  the  choice  of  the  president, 
the  person  having  the  greatest  number  of  votes  of  the  electors  shall 


^>^      OP    THE 


^QQ  APPENDIX. 

be  the  vice-president.  But  if  there  should  remain  two  or  more  who 
have  equal  votes,  the  senate  shall  choose  from  them,  by  ballot,  the 
vice-president.]  ^ 

4.  The  congress  may  determine  the  time  of  choosing  the  electors, 
and  the  day  on  which  they  shall  give  their  votes,  which  day  shall  be 
the  same  throughout  the  United  States. 

5.  No  person,  except  a  natural  born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  constitution,  shall  be 
eligible  to  the  ofRce  of  president ;  neither  shall  any  person  be  eligible 
to  that  office  who  shall  not  have  attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident  within  the  United  States. 

6.  In  case  of  the  removal  of  the  president  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties  of 
the  said  office,  the  same  shall  devolve  on  the  vice-president ;  and  the 
congress  may,  by  law,  provide  for  the  case  of  removal,  death,  resigna- 
tion or  inability,  both  of  the  president  and  vice-president,  declaring 
what  officer  shall  then  act  as  president ;  and  such  officer  shall  act  ac- 
cordingly, until  the  disability  be  removed,  or  a  president  shall  be 
elected. 

7.  The  president  shall,  at  stated  times,  receive  for  his  services  a 
compensation  which  shall  neither  be  increased  nor  diminished  during 
the  period  for  which  he  shall  have  been  elected ;  and  he  shall  not  re- 
ceive within  that  period  any  other  emolument  from  the  United  States, 
or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation  : 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the 
office  of  president  of  the  United  States ;  and  will,  to  the  best  of  my 
ability,  preserve,  protect  and  defend  the  constitution  of  the  United 
States." 

Section  2. 

1.  The  president  shall  be  commander-in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  states, 
when  called  into  the  actual  service  of  the  United  States.  He  may 
require  the  opinion,  in  writing,  of  the  principal  officer  in  each  of  the 
executive  departments,  upon  any  subject  relating  to  the  duties  of  their 
respective  offices ;  and  he  shall  have  power  to  grant  reprieves  and 
pardons  for  offences  against  the  United  States,  except  in  cases  of  im- 
peachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
senate,  to  make  treaties,  provided  two-thirds  of  the  senators  present 

1  This  paragraph  has  been  superseded  and  annulled  by  the  12th  Amendment. 


APPENDIX.  367 

concur ;  and  he  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  senate  shall  appoint,  ambassadors,  other  public  ministers 
and  consuls,  judges  of  the  supreme  court,  and  all  other  officers  of  the 
United  States  whose  appointments  are  not  herein  otherwise  provided 
for,  and  which  shall  be  established  by  law.  But  the  congress  may, 
by  law,  vest  the  appointment  of  such  inferior  officers  as  they  think 
proper,  in  the  president  alone,  in  the  courts  of  law,  or  in  the  heads 
of  departments. 

3.  The  president  shall -have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  senate,  by  granting  commissions 
which  shall  expire  at  the  end  of  their  next  session. 

Section  3. 

1.  He  shall,  from  time  to  time,  give  to  the  congress  information  of 
the  state  of  the  Union,  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient.  Pie  may,  on 
extraordinary  occasions,  convene  both  houses,  or  either  of  them ;  and 
in  case  of  disagreement  between  them,  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as  he  shall  think 
proper.  He  shall  receive  ambassadors  and  other  public  ministers. 
He  shall  take  care  that  the  laws  be  faithfully  executed ;  and  shall 
commission  all  the  officers  of  the  United  States. 

Section  4. 

1.  The  president,  vice-president  and  all  civil  officers  of  the  United 
States,  shall  be  removed  from  office  on  impeachment  for,  and  convic- 
tion of  treason,  bribery  or  other  high  crimes  and  misdemeanors. 

ARTICLE  III. 

Section  1. 

1.  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
supreme  court,  and  in  such  inferior  courts  as  the  congress  may,  from 
time  to  time,  ordain  and  establish.  The  judges,  both  of  the  supreme 
and  inferior  courts,  shall  hold  their  offices  during  good  behavior;  and 
shall,  at  stated  times,  receive  for  their  services  a  compensation,  which 
shall  not  be  diminished  during  their  continuance  in  office. 

Section  2. 

1.  The  judicial  power  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under  their  authority ;  to  all 


368  APPENDIX. 

cases  affecting  ambassadors,  other  public  ministers  and  consuls;  to 
all  cases  of  admiralty  and  maritime  jurisdiction ;  to  controversies  to 
which  the  United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  states  ;  between  a  state  and  citizens  of  another  state  ; 
between  citizens  of  different  states,  between  citizens  of  the  same  state 
claiming  lands  under  grants  of  different  states,  and  between  a  state, 
or  the  citizens  thereof,  and  foreign  states,  citizens  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  state  shall  be  party,  the  supreme  court 
shall  have  original  jurisdiction.  In  all  the  other  cases  before  men- 
tioned, the  supreme  court  shall  have  appellate  jurisdiction,  both  as  to 
law  and  fact,  with  such  exceptions  and  under  such  regulations  as  the 
congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury,  and  such  trial  shall  be  held  in  the  state  where  the  said  crimes 
shall  have  been  committed ;  but  when  not  committed  within  any  state, 
the  trial  shall  be  at  such  place  or  places  as  the  congress  may  by  law 
have  directed. 

Section  3. 

1.  Treason  against  the  United  States  shall  consist  only  in  levying 
war  against  them  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.  No  person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court. 

2.  The  congress  shall  have  power  to  declare  the  punishment  of 
treason  ;  but  no  attainder  of  treason  shall  work  corruption  of  blood, 
or  forfeiture,  except  during  the  life  of  the  person  attainted. 

ARTICLE  IV. 
Section  1. 

1.  Full  faith  and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records  and  judicial  proceedings  of  every  other  state  ;  and  the 
congress  may,  by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

Section  2. 

1.  The  citizens  of  each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  states. 

2.  A  person  charged  in  any  state  with  treason,  felony  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  state,  shall, 
on  demand  of  the  executive  authority  of  the  state  from  which  he  fled, 


APPENDIX.  369 

be  delivered  up,  to  be  removed  to  the  state  having  jurisdiction  of  the 
crime. 

3.  No  person  held  to  service  or  labor  in  one  state  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor ;  but  shall 
be  delivered  up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due. 

Section  3. 

1.  New  states  may  be  admitted  by  the  congress  into  this  Union; 
but  no  new  state  shall  be  formed  or  erected  within  the  jurisdiction  of 
any  other  state,  nor  any  state  be  formed  by  the  junction  of  two  or 
more  states  or  parts  of  states,  without  the  consent  of  the  legislatures 
of  the  states  concerned,  as  well  as  of  the  congress. 

2.  The  congress  shall  have  power  to  dispose  of,  and  make  all  need- 
ful rules  and  regulations  respecting,  the  territory  or  other  property 
belonging  to  the  United  States ;  and  nothing  in  this  constitution  shall 
be  so  construed  as  to  prejudice  any  claims  of  the  United  States,  or  of 
any  particular  state. 

Section   4. 

1.  The  United  States  shall  guarantee  to  every  state  in  this  Union        ^ 
a  republican  form  of   government,  and  shall  protect  each  of  them 
against  invasion  ;  and,  on  application  of  the  legislature,  or  of  the  ex- 
ecutive (when  the  legislature  cannot  be  convened),  against  domestic 
violence. 

ARTICLE    V. 

1.  The  congress,  whenever  two-thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  constitution ;  or,  on  the 
application  of  the  legislatures  of  two-thirds  of  the  several  states,  shall 
call  a  convention  for  proposing  amendments,  which,  in  either  case, 
shall  be  valid  to  all  intents  and  purposes,  as  part  of  this  constitution, 
when  ratified  by  the  legislatures  of  three-fourths  of  tlie  several  states, 
or  by  conventions  in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  congress ;  provided  that 
no  amendment,  which  may  be  made  prior  to  the  year  one  thousand  [  *7j 
eight  hundred  and  eight,  shall  in  any  manner  affect  the  first  and  fourth  i  ^-W  ^ 
clauses  in  the  ninth  section  of  the  first  article  ;  and  that  no  state, 
without  its  consent,  shall  be  deprived  of  its  equal  suff'rage  in  the 
senate. 

ARTICLE   VL 

1.  All  debts  contracted  and  engagements  entered  into  before  the 
adoption  of  this  constitution  shall  be  as  valid  against  the  United  States 
under  this  constitution,  as  under  the  confederation. 
24 


370  APPENDIX. 

2.  This  constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be  the  su- 
preme law  of  the  land  ;  and  the  judges  in  every  state  shall  be  bound 
thereby,  anything  in  the  constitution  or  laws  of  any  state  to  the  con- 
trary notwithstanding. 

3.  The  senators  and  representatives  before  mentioned,  and  the 
members  of  the  several  state  legislatures,  and  all  executive  and  judi- 
cial officers,  both  of  the  United  States  and  of  the  several  states,  shall 
be  bound  by  oath  or  affirmation  to  support  this  constitution  ;  but  no 
religious  test  shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States. 

ARTICLE    VII. 

1.  The  ratification  of  the  conventions  of  nine  states  shall  be  suffi- 
cient for  the  establishment  of  this  constitution  between  the  states  so 
ratifying  the  same. 

Done  in  convention  by  the  unanimous  consent  of  the  states  present,  the 
seventeenth  day  of  September,  in  the  year  of  our  Lord  one  thousand  seven 
hundred  and  eighty-seven,  and  of  the  Independence  of  the  United  States 
of  America  the  twelfth.  In  witness  whereof  we  have  hereunto  sub- 
scribed our  names. 


William  Jackson,  Secretary. 


GEORGE  WASHINGTON, 
President,  and  Deputy  from  Virginia. 


AMENDMENTS  TO  THE  CONSTITUTION  OF  THE 
UNITED   STATES. 

[The  following  amendments  were  proposed  at  the  first  session  of 
the  first  congress  of  the  United  States,  which  was  begun  and  held  at 
the  city  of  New  York  on  the  4th  of  March,  1789,  and  were  adopted 
by  the  requisite  number  of  states.  Laws  of  the  U.  S.  vol.  1,  page 
82. 

[The  following  preamble  and  resolution  preceded  the  original  prop- 
osition of  the  amendments.  They  will  be  found  in  the  journals  of 
the  first  session  of  the  first  congress.] 


APPENDIX.  371 


[CONGRESS   OF    THE  UNITED   STATES. 

Begun  and  held  at  the  city  of  New  York,  on  Wednesday^the  Jflh  day  of 

March,  1789, 

The  conventions  of  a  number  of  the  states  having,  at  the  time  of 
their  adopting  the  constitution,  expressed  a  desire,  in  order  to  prevent 
misconstruction  or  abuse  of  its  powers,  that  further  declaratory  and 
restrictive  clauses  should  be  added,  and  as  extending  the  ground  of 
public  confidence  in  the  government  will  best  insure  the  beneficent 
ends  of  its  institution : 

Resolved,  By  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America,  in  congress  assembled,  two-thirds  of  both  houses  concurring,  that  the 
following  articles  be  proposed  to  the  legislatures  of  the  several  states,  as  amend- 
ments to  the  constitution  of  the  United  States;  all  or  any  of  which  articles,  when 
ratified  by  three-fourths  of  the  said  legislatures,  to  be  valid  to  all  intents  and  pur- 
poses, as  part  of  the  said  constitution,  namely  :  ] 

ARTICLE   I. 
Congress  shall  make  no  law  respecting  an  establishment  of  religion, 
or  prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom  of 
speech  or  of  the  press ;  or  the  right  of  the  people  peaceably  to  assem- 
ble, and  to  petition  the  government  for  a  redress  of  grievances. 

ARTICLE  II. 
A  well  regulated  militia  being  necessary  to  the  security  of  a  free 
state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  in- 
fringed. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  with- 
out the  consent  of  the  owner,  nor  in  time  of  war  but  in  a  manner  to 

be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the'people  to  be  secure  in  their  persons,  houses,  papers 
and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be 
violated ;  and  no  warrants  shall  issue  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly  describing  the  place  to 
be  searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE  V. 
No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia, 


372  APPENDIX. 

when  in  actual  service  in  time  of  war  or  public  danger ;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of 
life  or  limb ;  nor  shall  be  compelled,  in  any  criminal  case,  to  be  a 
witness  against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law  ;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation. 

ARTICLE  VI. 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law ;  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation ;  to  be  confronted  with  the  wit- 
nesses against  him;  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor,  and  to  have  the  assistance  of  counsel  for  his  de- 
fence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 

twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved ;  and  no 
fact  tried  by  a  jury  shall  be  otherwise  reexamined  in  any  court  of  the 
United  States,  than  according  to  the  rules  of  the  common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 
The  enumeration  in  the  constitution  of  certain  rights  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE  X. 
The  powers  not  delegated  to  the  United  States  by  the  constitution, 
nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states  respect- 
ively, or  to  the  people. 

[The  following  amendment  was  proposed  at  the  second  session  of 
the  third  congress.  It  is  printed  in  the  Laws  of  the  United  States, 
vol.  1,  p.  73,  as  Article  XL] 

ARTICLE  XL 
The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  state,  or  by  citizens  or 
subjects  of  any  foreign  state. 


APPENDIX.  373 

[The  three  following  sections  were  proposed  as  amendments  at  the 
first  session  of  the  eighth  congress.  They  are  printed  in  the  Laws  of 
the  United  States  as  Article  XII.] 

ARTICLE    XII. 

1.  The  electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  president  and  vice-president,  one  of  whom  at  least  shall  not 
be  an  inhabitant  of  the  same  state  with  themselves.  They  shall  name 
in  their  ballots  the  person  voted  for  as  president,  and  in  distinct  bal- 
lots the  person  voted  for  as  vice-president ;  and  they  shall  make  dis- 
tinct lists  of  all  persons  voted  for  as  president,  and  of  all  persons  voted 
for  as  vice-president,  and  of  the  number  of  votes  for  each  ;  which  lists 
they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  gov- 
ernment of  the  United  States,  directed  to  the  president  of  the  senate. 
The  president  of  the  senate  shall,  in  the  presence  of  the  senate  and 
house  of  representatives,  open  all  the  certificates,  and  the  votes  shall 
then  be  counted.  The  person  having  the  greatest  number  of  votes 
for  president  shall  be  the  president,  if  such  number  be  a  majority  of 
the  whole  number  of  electors  appointed  ;  and  if  no  person  have  such 
majority,  then  from  the  persons  having  the  highest  numbers,  not  ex- 
ceeding three,  on  the  list  of  those  voted  for  as  president,  the  house  of 
representatives  shall  choose  immediately,  by  ballot,  the  president. 
But  in  choosing  the  president,  the  votes  shall  be  taken  by  states,  the 
representation  from  each  state  having  one  vote ;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two-thirds  of  the 
states,  and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice. 
And  if  the  house  of  representatives  shall  not  choose  a  president 
whenever  the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  vice-president  shall  act 
as  president,  as  in  the  case  of  the  death  or  other  constitutional  disa- 
bility of  the  president. 

2.  The  person  having  the  greatest  number  of  votes  as  vice-president 
shall  be  the  vice-president,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed,  and  if  no  person  have  a  majority,  then 
from  the  two  highest  numbers  on  the  list  the  senate  shall  choose  the 
vice-president.  A  quorum  for  the  purpose  shall  consist  of  two-thirds 
of  the  whole  number  of  senators,  and  a  majority  of  the  whole  number 
shall  be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of  presi- 
dent shall  be  eligible  to  that  of  vice-president  of  the  United  States. 


374  APPENDIX. 

ARTICLE   XIII.i"  / 

Section  1. 

Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment 
for  crime,  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  subject  to  their  jurisdiction. 

Section  2. 

Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

^  ARTICLE  X1V.2       -i 

Section  1. 

All  persons  born  or  naturalized  in  the'  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
state  wherein  they  reside.  No  state  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ;  nor  shall  any  state  deprive  any  person  of  life,  liberty 
or  property  without  due  process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws. 

Section  2. 

Representatives  shall  be  apportioned  among  the  several  states  ac- 
cording to  their  respective  numbers,  counting  the  whole  number  of 
persons  in  each  state,  excluding  Indians  not  taxed.  But  when  the 
right  to  vote  at  any  election  for  the  choice  of  electors  for  president  and 
vice-president  of  the  United  States,  representatives  in  congress,  the 
executive  and  judicial  officers  of  a  state,  or  the  members  of  the  legis- 
lature thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  state, 
being  twenty-one  years  of  age,  and  citizens  of  the  United  States,  or  in 
any  way  abridged,  except  for  participation  in  rebellion  or  other  crime, 
the  basis  of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the  whole  num- 
ber of  male  citizens  twenty-one  years  of  age  in  such  state. 

Section  3. 

No  person  shall  be  a  senator  or  representative  in  congress,  or  elector 
of  president  and  vice-president,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  state,  who,  having  previously 

1  Proposed  by  Congress  February  1,  1865.  Ratification  announced  by  Secre- 
tary of  State,  December  18,  1865. 

2  Proposed  by  Congress  June  16,  1866.  Ratification  announced  by  Secretary 
ofState,  July  28,  1868. 


% 


APPENDIX.  375 

taken  an  oath  as  a  member  of  congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  state  legislature,  or  as  an  executive  or 
judicial  officer  of  any  state,  to  support  the  constitution  of  the  United 
States,  shall  have  engaged  in  insurrection  or  rebellion  against  the 
same,  or  given  aid  or  comfort  to  the  enemies  thereof.  But  congress 
may,  by  a  vote  of  two-thirds  of  each  house,  remove  such  disability. 

Section  4. 

The  validity  of  the  public  debt  of  the  United  States  authorized  by 
law,  including  debts  incurred  for  payment  of  pensions  and  bounties 
for  services  in  suppressing  insurrection  or  rebellion,  shall  not  be  ques- 
tioned. But  neither  the  United  States  nor  any  state  shall  assume  or 
pay  any  debt  or  obligation  incurred  in  aid  of  insurrection  or  rebellion 
against  the  United  States,  or  any  claim  for  the  loss  or  emancipation 
of  any  slavja;  but  all  such  debts,  obligations,  and  claims  shall  be  held 
illegal  and  void. 

Section  5. 

The  congress  shall  have  power  to  enforce,  by  appropriate  legisla- 
tion, the  provisions  of  this  article. 

ARTICLE   XV.i 

Section  1. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  de- 
nied or  abridged  by  the  United  States  or  by  any  state  on  account  of 
race,  color,  or  previous  condition  of  servitude. 

Section  2. 

The  congress  shall  have  power  to  enforce  this  article  by  appropri- 
ate legislation. 

1  Proposed  by  Congress  February  27,  1869.  Ratification  announced  by  Secre- 
tary of  State,  March  30,  1870.  , 


376 


APPENDIX. 


JUSTICES  OF  THE   SUPREME   COURT  OF  THE 
UNITED   STATES. 


CHIEF  JUSTICES. 


John  Jay 
John  Rutledge    . 
Oliver  Ellsworth     . 
John  Marshall    . 
Roger  B.  Taney     . 
Salmon  P.  Chase 
Morrison  R.  Waite 
Melville  W.  Fuller 


APPOmiED  FBOM. 

Date  of 
Appointment 

N.  Y. 

1789  . 

S.C. 

1795 

Conn. 

1796 

Va. 

1801 

Md. 

1836 

Ohio. 

1864 

Ohio. 

1874 

111. 

1888 

End  op 
Sekvicb. 


17951  e> 

1795  2  ' 
1800  1  " 
1835  8  ^  \ 

1864  3  ^  r 

1873  8  "? 
1888  8  - 


^  Resigned. 

2  Served  one  term.    Not  coofirmed. 

8  Died. 

*  Now  on  the  bench. 


APPENDIX. 


377 


ASSOCIATE  JUSTICES. 


Appointed  from. 

Date  op 
Appointment. 

End  op 
Service. 

John  Rutledge        .... 

S.C. 

1789 

1791  1 

William  Gushing 

. 

, 

Mass. 

1789 

1810  3 

James  Wilson 

Pa. 

1789 

1798  3 

Thomas  Johnson 

Md. 

1791\ 

1793  1 

John  Blair 

Va. 

1789,) 

17961 

JamesTredell 

N.  C. 

179(^ 

1799  3 

William  Paterson   . 

N.J. 

1793 

1806  3 

Samuel  Chase    . 

Md. 

1796 

1811  3 

Bushrod  Washington 

Va. 

1798 

1829  3 

Alfred  Moore 

N.  C. 

1799 

1804  1 

William  Johnson   . 

S.C. 

1804 

1834  3 

Thomas  Todd     . 

Ky. 

1807S 

1826  1 

Brockholst  Livingston 

N.Y. 

1806'^ 

1823  3 

Gabriel  Duval     . 

Md. 

1811 

1836  1 

Joseph  Story  , 

Mass. 

1811 

1845  3 

Smith  Thompson 

N.  Y. 

1823 

1844  3 

Robert  Trimble      . 

Ky. 

1826 

1829  3 

John  McLean 

Ohio. 

1829 

18613 

Henry  Baldwin 

Pa. 

1830 

1846  3 

James  M.  Wayne 

Ga. 

1835 

1867  3 

Philip  P.  Barbour  . 

Va. 

1836 

1841  3 

John  Catron 

Tenn. 

1837 

1865  3 

John  McKinley 

Ala. 

1837 

1852  3 

Peter  V.  Daniel  . 

Va. 

1841 

1860  3 

Samuel  Nelson 

N.  Y. 

1845 

1872  1 

Levi  Woodbury  . 

N.H. 

1845 

18513 

Robert  C.  Grier     . 

Pa. 

1846 

1870  1 

Benjamin  R.  Curtis    . 

Mass. 

1851 

1857  1 

John  A.  Campbell  . 

La. 

1853 

1861  1 

Nathan  CliiFord  . 

Me. 

1858 

1881  3 

Noah  H.  Swavne    . 

Ohio. 

1862 

1881  1 

Samuel  F.  MiUer 

Iowa. 

1862 

4 

David  Davis   . 

lU. 

1862 

1877  1 

Stephen  J.  Field 

Cal. 

1863 

4 

William  Strong 

Pa. 

1870 

1880  1 

Joseph  P.  Bradley 

N.J. 

1870 

4 

Ward  Hunt    . 

N.  Y. 

1872 

1882  1 

John  M.  Harlan  . 

Ky. 

1877 

4 

William  B.  Woods 

Ga. 

1880 

1887  3 

Horace  Gray 

Mass. 

1881 

4 

Stanley  Matthews  . 

Ohio. 

1881 

4 

Samuel  Blatchford      . 

N.  Y. 

1882 

4 

Lucius  Q.  C.  Lamar 

• 

Miss. 

1888 

4 

1  Resigned. 

3  Died. 

*  Now  on  the  bench. 


INDEX 


Adams,  John,  minister  to  England,  57  ; 
reference  to,  62  ;  Vice-President,  97  ; 
account  of  terrorism  excited  by 
Genet,  122;  President,  124;  charac- 
ter of,  124 ;  jealous  of  Hamilton, 
129;  expands  constitutional  powers, 
129  ;  his  "midnight  judges,"  259. 

Adams,  John  Quincy,  elected  Presi- 
dent, 146;  character  and  administra- 
tion, 146;  in  Congress,  192. 

Adams,  Samuel,  reference  to,  39,  62, 
84. 

Alabama  case,  arbitration,  219. 

Alabama,  secedes,  203. 

Alien  and  Sedition  Laws,  125;  uncon- 
stitutionality of,  125;  prosecutions 
under  sedition  laws,  126. 

Amendments  to  Constitution,  first  ten, 
100  ;  purpose  of,  101,  294;  eleventh, 
254;  twelfth,  134;  thirteenth,  206; 
object  of  latest  amendments,  102; 
construed  by  the  court,  281 ;  to  pre- 
vent interference  with  slavery  pro- 
posed, 203;  benefits  of  power  to 
make,  318. 

Amnesty  proclamation,  211. 

Anti-Federal  party,  formed,  107 ;  Jef- 
ferson its  leader,  107. 

Arkansas,  secedes,  203  ;  reconstruction 
in,  209. 

Arthur,  Chester  A.,  vetoes  river  and 
harbor  bill,  143 ;  his  administration, 
221. 

Articles  of  Confederation,  text  of,  351 ; 
step  towards  constitution,  6 ;  forma- 
tion of,  47  ;  ratification  of,  delayed, 
48  ;  provisions  of,  49  ;  defects  of,  51 ; 
good  features  of,  51,  53  ;  diflSculty  in 
forming,  53. 


Bank  of  the  United  States,  consti- 
tutional argument  for  and  against, 
112;  formed,  115;  rechartered,  141  ; 
charter  vetoed  by  President  Jackson, 
150;  by  President  Tyler,  167;  case 
of,  in  supreme  court,  267. 

Bill  of  rights,  why  not  in  constitution, 
77. 

Blockades,  English  and  French,  136. 

Boston  port  bill,  38. 

Bradley,  Justice,  quoted,  278. 

British  influence  in  first  administration, 
117. 

Bryce's  "American  Commonwealth,'* 
note  upon,  1 7  ;  referred  to,  342. 

Buchanan,  James,  President,  203,  204. 

Bunker  Hill,  battle  of,  41. 

Burke,  Edmund,  quoted,  27,  33,  36. 

Burr,  Aaron,  scheme  of,  77  ;  Vice-Presi- 
dent, 134. 

Cabinet,  authority  for,  72. 

Calhoun,  John  C,  favors  protective 
tariff,  141  ;  opposes  it,  152;  opposes 
spoils  system,  150;  favors  nullifica- 
tion, 162;  desires  supreme  court  to 
decide  as  to  constitutionality  of  pro- 
tective tariff,  160;  resigns  as  Vice- 
President  and  becomes  senator,  162; 
threatened  by  President  Jackson,  162  ; 
leader  of  pro-slavery  system  of  con- 
stitutional construction,  165;  refer- 
ence to,  172. 

California,  admitted  as  a  free  state, 
193  ;  discovery  of  gold  in,  193. 

Canada,  why  no  union  with,  325. 

Carpet-bag  governments,  217. 

Catron,  Justice,  275. 

Charters,  Colonial,  20,  21. 


380 


INDEX. 


Chase,  Salmon  P.,  Chief  Justice,  243 ; 
quoted,  280. 

Chase,  Samuel,  Justice,  quoted,  2.57, 
258  ;  impeached  and  acquitted,  258. 

Church  and  State,  337. 

Citizenship,  216. 

Civil  rights  bill,  214  ;  constitutionality 
of,  215. 

Civil  rights  cases  in  the  supreme  court, 
293. 

Clay,  Henry,  candidate  for  President  in 
124,  146;  favors*  iv.sfifF,  internal  im- 
provements, 146 ;  favors  compromise 
to  avert  nullification,  162;  defeated 
in  1844,  169,  192;  a  constructive 
statesman,  172. 

Cleveland,  Grover,  reference  to,  9, 117; 
his  administration,  221. 

Clinton,  George,  opposes  ratification  of 
constitution,  87  ;  remarks  of,  in  N.  Y. 
convention,  91  ;  desires  a  second  con- 
stitutional convention,  98. 

Colonies,  simple  systems  of,  3 ;  charters 
freely  given  for  first,  3  ;  prosperity 
of,  3  ;  self-government  in,  3 ;  easily 
changed  to  states,  4  ;  allegiance  of,  to 
Great  Britain,  18;  furnish  soldiers 
in  French  war,  18;  separate  govern- 
ments of,  19  ;  league  of,  in  New  Eng- 
land, 19  ;  congress  of  delegates  of,  at 
Albany,  19 ;  union  between,  20  ;  sim- 
ilar governments  of,  20;  laws  of,  re- 
pugnant to  those  of  England,  void, 
21 ;  charter,  proprietary  and  provin- 
cial governments  of,  20 ;  laws  of,  23 ; 
executive,  legislative,  and  judicial  de- 
partments of,  23 ;  James  II.  attempts 
to  suppress  charters  of,  23  ;  neglected 
by  England,  23,  24;  friends  of,  in 
England,  23;  liberal  use  of  their 
poAvers,  23  ;  law  learning  in,  23,  27  ; 
trade  relations  of,  23;  evade  re- 
straints upon  trade,  23  ;  civil  corpo- 
rations at  first  become  political  gov- 
ernments, 23 ;  foundation  of  claim  to 
deprive  them  of  charters,  24 ;  tenure 
of  land  in,  26 ;  education  in,  26 ; 
slave-holders  in,  their  love  of  liberty, 
27  ;  growth  of  religious  liberty  in,  27  ; 
of  civil  liberty,  33 ;  taxation  of,  by 
Parliament,  33 ;  stamp  act,  congress 


of,  34 ;  Lord  Chatham's  defence  of, 
35 ;  become  states,  42,  45. 

Commerce,  effect  of  the  provision  to 
regulate,  298. 

Commerce,  reciprocal  advantages  of 
foreign,  117;  interstate,  221. 

"  Common  sense,"  Paine's,  41. 

Compromise,  respecting  tariff,  162 ; 
Missouri,  189  ;  slavery,  193. 

Confederacy,  continental,  of  the  U.  S., 
weakness  of,  53-55;  attempts  to 
strengthen,  53 ;  refusal  of  states  to 
respect,  54. 

Confederate  States  of  America,  formed 
by  eleven  seceding  states,  203. 

Congress,  of  colonies  in  1754,  19;  first 
continental,  37,  39  ;  second,  40 ;  sort 
of  government  existing  under,  40,  48  ; 
weakness  of  confederate,  57  ;  dissen- 
sions in,  58 ;  end  of  confederate  con- 
gress, 96. 

Cc/hgress  of  U.  S.,  reasons  for  two 
chambers,  69,  313;  powers  of,  dis- 
cussed and  enumerated  in  constitu- 
tional convention,  75-80 ;  first,  under 
constitution,  97 ;  acts  of,  98,  99  ;  dis- 
cusses extent  of  its  powers,  112; 
second  Congress,  117;  power  of,  with 
respect  to  treaties,  124,  135  ;  declares 
war  against  England,  138 ;  practice 
with  respect  to  river  and  harbor  ap- 
propriations, 142 ;  power  of,  with  re- 
spect to  a  protective  tariff,  154  ;  an- 
nexes Texas  by  joint  resolution,  169; 
answer  of,  as  to  power  over  slavery, 
182;  takes  charge  of  reconstruction, 
214 ;  power  to  regulate  jurisdiction 
and  organization  of  supreme  court, 
241  ;  as  affected  by  the  thirteenth, 
fourteenth,  and  fifteenth  amend- 
ments, 281 ;  advantage  of  separating 
legislative  from  other  departments, 
312. 

Connecticut,  charter  of  colony  made 
state  constitution,  21 ;  religious  lib- 
berty  developed  in,  31 ;  delegates  to 
constitutional  convention,  64;  con- 
stitution of  1639,  64  ;  ratifies  consti- 
tution, 83;  attitude  in  war  of  1812, 
139 ;  delegates  of,  to  Hartford  Con- 
vention, 139. 


INDEX. 


381 


Constitution,  of  states  easily  made,  4  ; 
definition,  6 ;  written  and  unwritten, 
6 ;  modern,  7 ;  of  Great  Britain,  7, 
344. 

Constitution  of  U.  S.,  text  of,  351 ;  for- 
eign criticism  of,  14  ;  number  of  pow- 
ers, 15;  powers  of,  expand,  14;  ex- 
perimental at  first,  15;  suggestions 
of,  47,  59 ;  necessary  for  regulation 
of  commerce,  56 ;  to  suppress  paper 
money,  57  ;  to  protect  contracts,  58 ; 
to  suppress  insurrections,  61 ;  forma- 
tion of,  recommended  by  commis- 
sioners of  five  states,  60 ;  opposition 
of  Congress  to,  60;  convention  to 
frame,  62-82  ;  ratification  of,  83-96 ; 
ten  amendments  adopted,  100;  elev- 
enth amendment,  254;  twelfth,  134; 
thirteenth,  206  ;  fourteenth,  2] 4;  fif- 
teenth, 216;  influence  of  limitations 
of,  upon  political  careers,  172,  342; 
whether  compact  or  government,  1 '  o- 
159,  278;  construction  of  latest 
amendments,  281  ;  does  not  add  to 
or  create  privileges  and  immunities, 
289. 

Constitutional  Convention  of  U.  S., 
New  York  proposes  and  then  recedes, 
59  ;  Virginia  takes  action  leading  to, 
59 ;  recommended  by  commissioners 
of  five  states,  60;  Congress  reluctantly 
approves,  60;  states  appoint  dele- 
gates, their  powers,  61  ;  meets  at 
Philadelphia,  62;  Rhode  Island  ab- 
sent, 61  ;  members  of,  62;  Washing- 
ton presides,  62 ;  rules  of,  64  ;  Vir- 
ginia proposes  national  plan,  64,  66  ; 
discussion  of,  66 ;  report  of  commit- 
tee, 66 ;  large  states  favor  it,  small 
states  oppose,  67  ;  Paterson  proposes 
to  amend  Articles  of  Confederation, 
68 ;  two  plans,  one  to  make  new  con- 
stitution, another  to  amend  old,  68 ; 
government  by  people  or  compact  of 
states,  68 ;  threats  of  disruption,  68^; 
Franklin  proposes  compromise,  69; 
states  to  be  represented  in  Senate, 
people  in  House,  69 ;  Congress  to 
have  two  chambers,  reasons  for,  69 ; 
executive,  of  one  or  more  persons, 
70  ;  how  to  be  chosen,  71 ;  confidence 


in  and  distrust  of  people,  71  ;  Presi- 
dent, his  duties,  71,  72;  cabinet  or 
privy  council,  71, 72  ;  Vice-President, 
71 ;  judiciary  department,  73  ;  juris- 
diction of,  73 ;  powers  conferred 
upon  and  devised  to  Congress,  75- 
80;  powers  denied  to  the  states,  77, 
78  ;  U.  S.  to  have  none  but  delegated 
powers,  77 ;  why  bill  of  rights  was 
not  inserted,  77  ;  slavery  discussed, 
78,  80 ;  imports  taxed,  exports  free, 
79;  slaves  im,^  .s,  80;  counted  for 
taxation  and  representation,  78 ;  reg- 
ulation of  commerce,  80;  no  property 
qualification  for  ofiice,  81  ;  revision, 
the  word  "  national  "  stricken  out, 
81  ;  completed,  81  ;  letter  to  Con- 
gress, 81  •  failure  of  efforts  to  con- 
vene a  second  convention,  98. 

Contracts,  obligation  of,  not  to  be  im- 
paired, litigation  respecting,  300. 

Corporations,  usefulness  of,  325. 

Cotton,  not  raised  in  S.  C,  in  1789, 
152. 

Crawford,  William  H.,  reference  to, 
146. 

Cumberland  Road,  142. 

Daniel,  Justice,  opinions  of,  273. 

Declaration  of  Independence,  meaning 
of,  43  ;  reference  to,  38,  45,  61: 

Delaware,  proprietary  government  of, 
20  ;  religious  liberty  in,  32 ;  adheres 
to  Union  in  the  rebellion,  203. 

Demagogues,  317. 

Democracies,  limited  and  unlimited, 
344. 

Democratic  party,  116,  123,  146, 192. 

Departments  of  the  government,  13  ;  of 
State,  Treasury,  and  War,  created, 
102;  influence  of  the  judicial  upon 
executive  and  legislative,  230  ;  checks 
upon  each  other,  312 ;  executive,  leg- 
islative, and  judicial,  practically  not 
absolutely  separate,  318. 

De  Tocqueville,  reference  to,  19,  171. 

Division  of  powers  of  government,  309. 

Douglas,  Stephen  A.,  introduces  Kan- 
sas-Nebraska bill,  196;  presidential 
candidate,  203. 

Dred  Scott  case,  reference  to,  119,  181, 


382 


INDEX. 


185,  200,  201,  202,  206,  215,  234,  274, 
282. 
Due  process  of  law,  significance  of,  296. 

Electoral  Commission,  231. 

Ellsworth,  Oliver,  63 ;  chief  justice,  243  ; 
remarks  upon  duty  of  courts  to  de- 
clare unconstitutional  law  void,  251  ; 
drafts  judiciary  act,  253. 

Emancipation  proclamation,  203 ;  scope 
of,  203. 

Embargoes,  136;  effect  of,  136;  policy 
of,  137. 

Expenses  of  government  first  year,  99. 

Exports,  the  South  opposes  taxation 
upon,  79 ;  not  to  be  taxed,  79. 

Extent  of  territory,  a  condition  of 
safety,  316,  321. 

"Federalist,"  the,  writers  of,  88;  in- 
fluence and  rank  of,  88. 

Federal  party  comes  into  existence, 
107  ;  Hamilton  leader  of,  107  ;  defeat 
of,  128 ;  character  of,  129-133  ;  strong 
in  New  England,  139  ;  hostile  to  war 
of  1812,  139  ;  downfall  of,  144. 

Females,  citizens,  not  voters,  289. 

Field,  Justice,  quoted,  287. 

Fillmore,  Millard,  President,  170, 

Florida,  acquisition  of,  144;  secedes,  203. 

Food  and  clothing  supply,  331. 

France,  influence  of  philosophers  of,  6; 
loses  possessions  in  America,  18  ;  war 
with,  instructive  to  colonists,  37; 
agent  of,  declares  U.  S.  has  no  gov- 
ernment, 55 ;  U.  S.,  troubles  with, 
120-138;  sympathy  with  revolution 
in,  121  ;  aid  of,  in  American  revolu- 
tion, 120 ;  seeks  to  make  U.  S.  her 
ally  against  England,  121,  122;  of- 
fended at  our  neutrality,  121  ,*  in- 
stigates popular  opposition  to  Wash- 
ington's administration,  122;  mer- 
cenary proposals  of  the  Directory  of, 
124  ;  decrees  of  blockade,  136  ;  cedes 
Louisiana  territory,  135  ;  revolution 
in,  referred  to,  5,  106,  117,  121,  132. 

Franklin,  Benjamin,  testimony  of,  re- 
specting colonies,  34 ;  suggests  a  con- 
tinental congress,  37 ;  delegate  in 
constitutional  convention,  62 ;  char- 


acter of,  62 ;  proposes  compromise  in 
constitutional  convention,  62 ;  peti- 
tions first  congress  in  behalf  of  slaves, 
182;  death  of,  182. 

Free  discussion,  advantages  of,  315. 

Fremont,  General,  proposes  to  free 
slaves,  204. 

Fugitive  slave  law,  first,  183;  of  1850, 
193  ;  hostility  to,  194 ;  repealed,  205 ; 
case  in  Wisconsin,  239. 

Fuller,  Melville  W.,  Chief  Justice,  243. 

Garrison,  William  Lloyd,  189. 

Genet,  French  minister,  troubles  caused 
by,  122;  recalled,  122. 

Geneva  award,  the,  220. 

Georgia,  provincial  government  of,  20  ; 
religious  liberty  in,  32;  resists  su- 
preme court,  237,  254;  secedes,  203  ; 
"  Yazoo  frauds,"  261. 

Government  by  law,  9 ;  under  the  con- 
stitution begins,  97;  necessity  for, 
303  ;  how  constituted,  303 ;  perver- 
sions of,  304 ;  an  instrumentality  of 
cooperation  for  public  good,  305  ;  ten- 
dency of  power  to  abuse,  306. 

Great  Britain,  constitution  of,  7 ;  power 
of  the  queen,  8 ;  allegiance  of  the  col- 
onies to,  18;  grants  charters  to  col- 
onies, 20 ;  takes  New  York  from  the 
Dutch,  23 ;  laws  of,  models  for  col- 
onies, 24,  45 ;  neglects  the  colonies, 
25  ;  oppressive  trade  and  navigation 
acts,  25  ;  regards  colonies  as  civil 
corporations,  24 ;  church  of,  28  ;  tol- 
eration act  of,  29 ;  claims  right  to  tax 
colonies,  33, 35 ;  stamp  act  passed,  34  ; 
attempts  to  coerce  Massachusetts,  38  ; 
declares  Massachusetts  in  rebellion, 
39 ;  colonies  revolt  against  threat- 
ened oppression  of,  45  ;  hostile  navi- 
gation regulations  after  the  revolu- 
tion, 56  ;  commercial  influence  of,  56  ; 
troubles  with,  120;  treaty  with,  123  ; 
treaty  expires,  134 ;  troubles  renewed, 
136;  war  Avith,  138;  peace,  138;  Ge- 
neva arbitration,  219 ;  tendency  of,  to- 
wards unlimited  Democracy,  348. 

Hamilton,  Alexander,  delegate  to 
constitutional  convention,  63 ;  char- 


INDEX. 


383 


acter  of,  63,  103,  108 ;  favors  strong 
government,  64 ;  delegate  to  N.  Y. 
convention,  88;  writes  portions  of 
"  Federalist,"  88 ;  first  secretary  of 
treasury,  102;  influence  in  organiz- 

,  ing  government  under  constitution, 
103;  financial  measures  of,  104, 105; 
cooperates  with  Jefferson  to  locate 
capital  and  assume  state  debts,  107  ; 
leader  of  federal  party,  107;  upon 
French  treaty,  121  ;  aids  election  of 
Jefferson,  134;  quoted,  upon  depart- 
ments of  government,  70 ;  upon  prob- 
ability of  ratification,  83 ;  upon  finan- 
cial policy,  104;  upon  bank,  112; 
upon  action  by  Virginia,  115;  upon 
liberal  construction  of  constitution, 
130;  upon  the  judiciary,  241  ;  upon 
supremacy  of  constitution,  252 ;  upon 
power  of  individual  to  sue  a  state, 
253;  upon  government,  308,  317. 

Hancock,  John,  in  Massachusetts  con- 
vention, 80 ;  upon  power  of  individual 
to  sue  a^tate,  254. 

Harlan, -Justice,  quitted,  283. 

Harrison,  William  H.,  President,  166. 

Hartford  convention,  139. 

Hayes,  Rutherford  B.,  President,  220; 
his  administration,  221, 

Henry,  Patrick,  refuses  to  attend  con- 
stitutional convention,  62 ;  opposes 
ratification,  85. 

Higher  law,  the,  190,  219. 

History,  new  era  in  its  teachings,  326. 

Holy  alliance,  the,  145. 

Houston,  Samuel,  sketch  of,  168. 

Immigration,  not  dangerous,  336. 

Indians,  peace  with,  119;  not  citizens, 
216;  The  Cherokee  case,  237. 

Internal  Improvements,  142;  appro- 
priations for,  142. 

Iowa  admitted,  194. 

Jackson,  Andrew,  gains  battle  of 
New  Orleans,  138;  candidate  for 
President,  146  ;  character  of,  147  ;  be- 
comes President,  148;  his  administra- 
tion, 149 ;  removes  deposits  of  U.  S., 
151;  censured  by  Senate,  151  ;  res- 
olution  expunged,   151  ;    his  union 


toast,  160;  proclamation  against  nul- 
lification, 161  ;  tribute  to,  165  ;  opin- 
ion upon  power  of  supreme  court, 
232,  237. 

Jay,  John,  author  of  first  constitution 
of  N.  Y.,  44;  minister  to  England, 
57  ;  writes  portions  of  "  Federalist," 
88;  chief  justice,  123,  242;  nego- 
tiates treaty  with  England,  123  ;  op- 
position to  the  treaty,  123;  resigns 
as  chief  justice,  242. 

Jefferson,  Thomas,  first  secretary  of 
state,  102;  influence  of,  103;  char- 
acter and  fame  of,  108;  contentions 
with  Hamilton,  108;  his  account  of 
the  adoption  of  the  capital  and  as- 
sumption bills,  106  ;  views  of  Hamil- 
ton's methods,  115;  sympathy  with 
whiskey  rebellion,  118;  leader  of 
anti-federalist  party,  107,  127;  au- 
thor of  Kentucky  resolutions,  127; 
opposition  to  the  federal  administra- 
tion, 128;  fears  monarchy  in  U.  S., 
129;  elected  President,  129, 134  ;  his 
administration,  131-137;  purchases 
Louisiana,  135 ;  recommends  em- 
bargo, 136;  quoted,  110,  112,  115, 
129,  130,  231. 

Johnson,  Andrew,  President,  207  ;  char- 
acter of,  referred  to,  207,  210,  213  ; 
attempts  reconstruction  alone,  208 ; 
measures  for,  211;  failure  of  his 
measures,  211  ;  impeachment  of,  and 
its  failure,  213 ;  Congress  passes  acts 
over  his  veto,  214,  244. 

Judiciary  Department.  See  Supreme 
Court.  Creation  and  powers  of,  dis- 
cussed in  constitutional  convention, 
73  ;  weak  in  the  beginning,  227  ;  un- 
certainty as  to  powers,  227  ;  weakest 
in  the  government,  241 ;  jurisdiction 
of,  242 ;  appellate  jurisdiction  of 
judgments  of  state  courts,  262;  re- 
sisted, 262-267;  proposition  to  re- 
peal act  conferring  jurisdiction  of 
state  judgments,  267  ;  popular  senti- 
ment respecting,  335. 

Kansas,  struggles  in,  196;  admission 

as  a  free  state,  200. 
Kansas-Nebraska  bill,  196,  197,  199. 


384 


INDEX. 


Kentucky,  admitted,  116;  adheres  to 
the  Union,  203. 

Lee,  Eichaed  Henry,  opposes  ratifi- 
cation of  constitution,  86;  favors 
fair  trial  after  its  ratification,  98. 

Legal  tender  cases,  244,  301. 

Lexington  and  Concord,  battles  of,  39. 

Lincoln,  Abraham,  on  slavery,  197; 
elected  President,  203  j  disclaims  pur- 
pose to  interfere  with  slavery,  203 ; 
overrules  Fremont's  plan  to  free 
slaves,  204  ;  issues  emancipation 
proclamation,  205  ;  character,  206 ; 
death,  206;  reserves  reconstruction 
to  himself,  207  ;  plan  for  reconstruc- 
tion in  Louisiana,  209  ;  supported  by 
the  people  against  Congress,  210; 
quoted,  upon  power  of  supreme 
court,  234 ;  action  in  Merryman's 
case,  240. 

Local  self-government,  in  colonies,  3 ; 
in  states,  5 ;  essential  part  of  Amer- 
ican system,  319,  321. 

Louisiana,  opposition  to  admission  of, 
187  ;  secedes,  203 ;  reconstruction  of, 
209. 

Louisiana  territory,  purchase  of,  135  ; 
constitutionality  of  purchase,  135; 
importance  of,  135. 

Lundy,  Benjamin,  189, 

Machine  politics,  149,  166. 

Madison,  James,  delegate  to  constitu- 
tional convention,  63;  character  of, 
63 ;  proposes  privy  council,  72  ;  doubt- 
ful about  ratification,  81 ;  in  Virginia 
convention,  86 ;  writes  portions  of 
"Federalist,"  88;  useful  labors  in 
first  Congress  under  constitution,  98 ; 
President,  137 ;  quoted,  upon  slaves, 
182;  upon  supreme  court,  235  ;  upon 
principles  of  government,  307,  313, 
316,  322. 

"  Madison  Papers,"  64. 

Marshall,  John,  in  Virginia  conven- 
tion, 86 ;  expositions  of  constitu- 
tion, followed  by  Webster  in  reply  to 
Hayne,  157,  271;  referred  to,  171, 
260,  272  ;  chief  justice,  243 ;  secre- 
tary of  state,  259  ;  quoted,  114,  266, 


268,  270  ;  present  influence  and  fame 
of,  277. 

Martin,  Luther,  remarks  in  constitu- 
tional convention,  68;  letter  in  op- 
position to  ratification,  85  ;  referred 
to,  269. 

Maryland,  proprietary  government  of, 
20 ;  religious  liberty  in,  27  ;  becomes 
a  state,  44 ;  sends  delegates  to  con- 
stitutional convention,  61 ;  adheres 
to  Union,  203. 

Massachusetts,  representative  assembly 
in,  21 ;  illiberal  charter  of  1692  ex- 
panded by  usage,  22;  religious  lib- 
erty developed  in,  27 ;  deprived  of 
charter  privileges,  38;  ratifies  con- 
stitution, 84;  attitude  in  war  of 
1812,  139  ;  sends  delegates  to  Hart- 
ford Convention,  139. 

Merryman's  case,  240, 

Mexico,  war  with,  170;  results  of  the 
war,  170. 

Miller,  Justice,  quoted,  279  ;  construes 
fourteenth  amendment,  284. 

Minor's  case,  288. 

Mississippi,  secedes,  203. 

Missouri,  admitted  with  slavery,  188; 
compromise,  189;  compromise  de- 
clared unconstitutional,  200 ;  adheres 
to  the  Union,  203. 

Monroe,  James,  opposes  ratification  of 
constitution,  86  ;  letter  to  Jackson, 
131  ;  becomes  President,  141 ;  his  ex- 
ecutive ability,  141  ;  reelection,  141 ; 
vetoes  bill  for  Cumberland  Road,  142 ; 
veto  message  suggests  river  and  har- 
bor improvements,  143 ;  signs  Mis- 
souri compromise  bill,  189. 

Monroe  doctrine,  the,  144 ;  applied  in 
case  of  Mexico,  145. 

Montesquieu,  referred  to,  5,  88,  178; 
quoted,  313,  316,  323. 

Morocco,  government  of,  323. 

Napoleon's  wars,  136 ;  effect  of  his 
overthrow  on  our  war  with  England, 
138. 

Navigation  acts,  in  restraint  of  colo- 
nial trade,  23 ;  after  the  revolution, 
56. 

Nebraska,  195  ;  bill  for  government  of, 


INDEX. 


386 


195;  excitement  caused  by  passage 
of  amended  bill,  199. 

Negroes.  See  Slavery.  Laws  of  seced- 
ing states  against,  212;  equal  rights 
and  suffrage  given  to,  216,  219 ;  con- 
dition of,  218. 

Neutrality,  in  French  Revolution,  122. 

New  Hampshire,  provincial  govern- 
ment of,  20  ;  first  to  adopt  state 
constitution,  43;  sends  delegates  to 
constitutional  convention,  61  ;  rati- 
fies constitution,  86. 

New  Haven,  colony  of,  21. 

New  Jersey,  provincial  government  of, 
20 ;  religious  liberty  in,  32 ;  forms 
state  constitution,  43 ;  ratifies  consti- 
tution, 83 ;  threatens  to  repudiate  re- 
quisitions of  confederacy,  59. 

New  York,  settled  by  the  Dutch,  22 ; 
struggles  of  people  for  liberty,  22,' 
religious  liberty  in,  31  ;  becomes  a 
state,  44 ;  votes  with  small  states  in 
constitutional  convention,  67  ;  two  of 
her  delegates  withdraw  from  conven- 
tion, 87  ;  convention  of,  opposed  to 
ratification,  86 ;  Governor  Clinton 
opposes,  87 ;  remarks  of,  91  ;  tenth 
state  to  ratify,  95 ;  not  participating 
in  first  presidential  election,  97;  re- 
sponse of  assembly  of,  to  Virginia 
and  Kentucky  resolutions,  128. 

Non-intercourse  acts,  in  war  of  1812, 
136. 

North  Carolina,  Locke's  constitutions 
for,  30  ;  settlers  in,  30  ;  religious  lib- 
erty in,  30 ;  forms  state  constitution, 
45 ;  twelfth  state  to  ratify  constitu- 
tion, 95  ;  cedes  western  territory  sub- 
ject to  slavery,  185  ;  secedes,  203. 

Nullification,  155,  160;  constitution- 
ality of,  discussed  155-160;  ordi- 
nance of,  161 ;  South  Carolina  stands 
alone,  161  ;  measures  to  suppress, 
162;  averted  by  compromise,  162; 
opposition  to  the  compromise,  162; 
South  Carolina  claims  the  victory, 
162,165. 

Ohio,  opposition  in   to  judgment    of 

U.  S.  court,  267. 
Orders  in  Council,  British,  80. 
25 


Ordinance,  for  government  of  North- 
west Territory,  99;  effect  of,  185; 
of  nullification,  161. 

Oregon,  territory,  acquired,  186;  boun- 
dary settled,  194. 

Parliament,  power  of,  8;  conserva- 
tion of  members  of,  8  ;  right  of,  to 
tax  America,  35  ;  to  bind  colonies  in 
all  cases,  37 ;  imposes  duties  upon 
imports,  36  ;  distinction  between  acts 
of,  and  of  Congress  and  state  legis- 
latures, 246;  tendency  of,  toward 
democracy,  348. 

Parties,  political,  formation  of,  107 ; 
early  contentions  of,  116;  decay  of 
in  Monroe's  administration,  146 ; 
formation  of  new,  146  ;  democratic, 
116,  123,  146,  192;  whig,  166,  195; 
anti-slavery,  169-197;  republican, 
197. 

Pennsylvania,  proprietary  government 
of  colony  of,  20  ;  religious  liberty  in, 
32 ;  adopts  tariflF  before  the  constitu- 
tion, 56  ;  sends  delegates  to  constitu- 
tional convention,  61  ;  ratifies  consti- 
tution, 83 ;  resists  supreme  court,  264. 

People,  the,  confer  sovereign  powers,  6 ; 
govern  indirectly  through  their  ofli- 
cers,  309 ;  why  so  reliable,  315,  316  ; 
their  vices  utilized,  314  ;  their  virtue 
increasing,  330. 

Physical  features  of  U.  S.  contribute  to 
union,  324. 

Pierce,  Franklin,  President,  1 95. 

Pinckney,  Charles  C,  58 ;  delegate  to 
constitutional  convention,  63 ;  pro- 
poses plan  of  constitution,  65 ;  quoted 
upon  protection  given  to  slavery  by 
the  constitution,  181. 

Pinkney,  William,  Marshall's  opinion 
of,  268. 

Political  clubs  formed  by  Genet,  122. 

Population,  increase  of,  331 . 

Post-offices  in  1789,99. 

President,  the,  discussion  over  in  consti- 
tutional convention,  72  ;  how  chosen, 
72,  134 ;  duties  of,  13,  72  ;  why  made 
eligible  to  reelection,  71  ;  first  elec- 
tion of,  97  ;  power  to  remove  officers, 
99;  executive  power,  extent  of,  129  ; 


K 


r-A.  .r^. 


k\^ 


INDEX. 


as  commander-in-chief,  205 ;  to  recon- 

strnct  states,  208. 
Provisional    govemment*  for  seceded 

states,  211. 
Poblic  lands  shonld  be   reserved  for 

actual  occupants,  332. 

QuBBBC,  conseqaences  of  capture  of, 
16. 

Railboads,  extent  and  bnsinees  of, 
122. 

Randolph,  Edmnnd,  remarks  of,  in 
constitutional  convention,  64. 

Ratification  of  the  constitution,  in  Del- 
aware, Pennsylvania,  New  Jersey, 
Georgia,  and  Connecticut,  83  ;  strug- 
gle in  Massachusetts,  83 ;  ratified, 
84 ;  in  Maryland  and  South  Caro- 
lina, 85 ;  opposition  in  Virginia,  85 ; 
ratified,  86;  in  New  Hampshire,  86 ; 
opposition  in  New  York,  86 ;  sketch 
of  debates  in  New  York  convention, 
89-95 ;  ratified,  95  ;  in  North  Caro- 
lina, 95  ;  in  Rhode  Island,  96. 

Reoonstruction  of  seceded  states,  207 ; 
constitutional  anthority  for,  208  ;  ob- 
jects to  be  attained,  207  Lincoln's 
views  of,  207,  208,  210;  his  plan  in 
Louisiana,  S09 ;  congressional  objec- 
tions to,  disregarded,  210 ;  President 
Johnson  undertakes,  without  aid  of 
Congress,  208;  amnesty  proclama> 
tion,  211 ;  action  by  seceded  states, 
212 ;  oppressive  laws  against  n^roes, 
212 ;  failure  of  Johnson's  plan,  212; 
Congress  takes  control,  213 ;  popu- 
lar feeling  in  seceded  states,  213 ; 
congressional  plan  and  action,  214; 
the  civil  rights  bill,  214;  fourteenth 
amendment,  214,  215;  Tennessee 
readmitted,  214 ;  seceded  states  read- 
mitted, 215;  impeachment  of  Presi- 
dent Johnson  and  its  failure,  215  ; 
negro  suffrage,  216 ;  carpet-bag  gov- 
ernment, 217;  resumption  by  the 
whites  of  political  power,  217  ;  con- 
dition of  the  negro,  218;  negro  suf- 
frage at  the  North,  219. 

Religion  influence  of,  upon  the  state, 
339. 


Religious  liberty,  development  of,  in  the 
colonies,  27. 

Removal  of  deposits,  151. 

Removals  from  office,  149. 

Republican  party,  197. 

Revolution,  the,  causes  leading  to,  23, 
33,  38 ;  declaration  of  war  of,  41  ; 
treaty  of  peace,  53 ;  soldiers  of,  un- 
paid, 53 ;  debts  incurred  for,  53. 

Rhode  Islsnd,  charter  of,  continued  as 
state  constitution,  21 ;  religious  lib- 
erty in,  27 ;  refuses  to  ratify  amend- 
ments to  Articles  of  Confedera- 
tion, 54,  62 ;  does  not  participate  in 
making  constitution,  61 ;  last  state 
to  ratify,  96;  slavery  in  colony  of, 
178;  rival  governments  of,  in  1842, 
322. 

Rivers  and  harbors,  improvement  of, 
142 ;  extravagant  appropriations  for, 
143;  bill  for,  vetoed  by  Presidents 
Pierce  and  Arthur,  143. 

Russia,  friendship  of  in  war  of  1812, 
138  ;  government  of  323. 

SscBSSioif,  by  eleven  states,  203. 

Sedition  law.  prosecutions  under,  127. 

Shays'  rebellion,  61,  84. 

Sidney  Algernon,  quoted,  HI. 

Slaughter-House  cases,  284. 

Slavery  in  United  States,  175;  how 
introduced,  175;  influence  upon,  of 
religious  wars,  176;  legality  of,  in 
colonies,  176  ;  Somerset's  case,  176  ; 
positive  law  necessary  to  create  it, 
176 ;  so  declared  by  constitution, 
177;  early  slave-trade,  177;  condi- 
tion of  negro  when  first  imported, 
177;  institution  tolerated,  178; 
emancipation  of,  in  nineteenth  cen- 
tury, 178  ;  Jefl^erson  opposed  to,  178 ; 
constitution  established  it,  179-182  ; 
early  petitions  to  Congress  to  abolish, 
182;  first  fugitive  slave  law,  183; 
abolition  by  northern  states,  183; 
abolition  societies,  184,  190;  Amer- 
ican Colonization  Society,  184  ;  new 
free  and  slave  states  admitted  in 
pairs,  184,  186;  Ordinance  of  1787, 
185;  admission  of  Louisiana,  187; 
Missouri  Compromise,  189;  Benjamin 


INDEX. 


387 


Lundy,  189;  William  Lloyd  Gar- 
rison, 189;  rise  of  abolition  party, 
190;  higher  law,  190;  laws  respect- 
ing slaves,  191  ;  petitions  to  Congress 
suppressed,  191 ;  attitude  of  whig 
and  democratic  parties,  192  ;  Wilmot 
Proviso,  192;  compromise  measures 
of  1850,  193;  admission  of  Califor- 
nia as  a  free  state,  193;  new  fugi- 
tive slave  law,  193;  repeal  of,  205; 
abolition  of  slave-trade  in  District 
of  Columbia,  193;  governments  for 
Utah  and  New  Mexico,  193 ;  features 
of  fugitive  slave  law,  1 94 ;  excite- 
ment caused  by,  194;  whig  party 
expires,  195  ;  the  Nebraska  bill,  195 ; 
Kansas-Nebraska  bill,  196, 199 ;  "  Un- 
cle Tom's  Cabin,"  197  ;  formation  of 
republican  party,  197;  position  of, 
196,202;  repeal  of  Missouri  Com- 
promise, 196,  199  ;  constitutional 
power  of  Congress  over  slavery  in 
the  territories,  196, 197, 198, 200, 201, 
202  ;  Dred  Scott  case,  200,  201,  202, 
206;  popular  sovereignty,  196,200; 
Senator  Sumner  assaulted,  1 99 ;  emi- 
grant aid  societies,  199;  division  in 
democratic  party,  202  ;  election  of 
President  Lincoln,  203 ;  Congress 
proposes  amendment  of  constitution 
to  establish  slavery  more  firmly,  203 ; 
secession  of  eleven  states,  203 ;  "  The 
Confederate  States  of  America,"  203 ; 
rebellion,  203  ;  right  to  coerce  seced- 
ing states,  203 ;  uprising  of  the  peo- 
ple, 204 ;  slaves  in  war,  204 ;  "  con- 
traband of  war,"  205 ;  emancipation 
proclamation,  205 ;  scope  of,  205 ; 
the  thirteenth  amendment,  206  ;  revo- 
lution in  northern  sentiment,  205 ; 
character  of  Lincoln,  206. 

South  Carolina,  provincial  government 
of,  20;  settlers  in,  30;  religious  lib- 
erty in,  30;  becomes  a  state,  43; 
sends  delegates  to  constitutional  con- 
vention, 61  ;  cedes  western  lands,  67  ; 
opposed  to  frequent  elections,  71  ; 
nullification  in,  155-165;  secedes, 
203. 

Sovereignty,  defini^on  of,  6 ;  distribu- 
tion of  powers  of,  6 ;  relation  of  the 


people  to,  6 ;  U.  S.  has  no  powers  of, 
except  as  granted,  301. 

Spain,  hostility  of,  136  ;  cedes  Florida, 
144  ;  retrocedes  Louisiana  territory 
to  France,  167  ;  cedes  claims  to  Ore- 
gon, 186  ;  independence  of  dominions 
of,  in  America,  144;  constitutions  of 
Spanish  republics,  324. 

Spirit  of  nationality,  influence  of,  325. 

Spoils  system,  149. 

Spoliation  of  property,  a  danger  to  lib- 
erty, 329. 

Stamp  act  and  tax,  34 ;  repeal  of  act, 
35. 

Stamp  act  congress,  34. 

States,  greater  number  of  their  powers, 
10;  limitations  of  their  powers,  11 ; 
constitutions  of,  easily  amended,  14  ; 
relations  to  U.  S.,  15;  hostility  to 
U.  S.,  16 ;  state  sovereignty,  16 ; 
colonies  formed  into,  42-45 ;  separate 
action  of,  after  revolution,  55 ;  jeal- 
ousies among,  57 ;  contracts  im- 
paired by,  58 ;  appoint  delegates  to 
constitutional  convention,  61  ;  repre- 
sented by  senators,  69;  ratify  con- 
stitution, 82-96;  decentralization  of 
power  in,  310 ;  good  results  of  separ 
rate  governments  of,  320. 

Sub-treasury,  166. 

Sumner,  Senator,  assaulted,  199. 

Supreme  Court  of  the  U.  S.  See  Ju- 
diciary Department.  Exposition  of 
the  constitution  by,  226 ;  its  present 
influence  results  from  natural  growth, 
228 ;  happily  constituted,  228 ;  indi- 
rect influence  over  other  depart- 
ments, 228;  reasons  for,  230,  233; 
protests  against,  231 ;  superiority  dis- 
claimed, 231  ;  Jefferson's  opinion, 
231 ;  Jackson's  opinion,  232  ;  stabil- 
ity of  the  court,  233  ;  Madison's  opin- 
ion, 234,  235 ;  cases  in  which  execu- 
tive and  legislative  departments  may 
disregard  opinion  of  court,  234 ;  Lin- 
coln's opinion,  234 ;  will  direct  per- 
formance of  ministerial  acts,  235 ; 
performs  only  judicial  functions,  236 ; 
no  power  to  enforce  its  decrees,  236  ; 
instances  of  executive  refusal  to  ex- 
ecute decrees,  237 ;  in  Georgia,  237 ; 


388 


INDEX. 


in  Wisconsin,  239  ;  Merryman's  case, 
240;  narrow  constitutional  protection 
of,  241  ;  sketch  of  organization  of, 
242 ;  congressional  modifications  of 
organization  and  jurisdiction,  243; 
regard  of,  for  state  rights,  245  ;  busi- 
ness of,  246  ;  novelty  of  power  to  de- 
clare unconstitutional  law  void,  246 ; 
judiciary  act,  253  ;  court  declares  in- 
dividual may  sue  a  state,  254 ;  elev- 
enth amendment  to  constitution  nul- 
lifies decision,  254  ;  stare  repudiation 
the    result,  254 ;    Virginia    coupon 
case,  255 ;  cases  in  which  the  power 
to  declare  an  unconstitutional  law 
void    was    discussed,    257 ;    Justice 
Samuel  Chase's  opinions,  257,  258 ; 
Marbury    v.    Madison,    259 ;     state 
courts  declare  unconstitutional  laws 
void,  260;  Yazoo  frauds  case,  261  ; 
appellate  jurisdiction  of  judgments  in 
Btate  courts,  262 ;  argument  against, 
263 ;    jurisdiction    sustained,    264 ; 
resistance  in  Pennsylvania,  264 ;  in 
Ohio,  266 ;  attempt  to  repeal  twenty- 
fifth  section  of  judiciary   act,  267; 
case  of  the  constitutionality  of  char- 
ter of  Bank  of  U.  S.,  267  ;  state  can- 
not tax  governmental  agency  of  U.  S., 
269 ;  court  declares  the  constitution 
to  be  a  government  created  by  the 
people,  not  a  compact  between  states, 
270;  the  court  is  the  final  arbiter, 
271  ;  fears  that  change  of  members 
would  change  principles  of  construc- 
tion, 272  ;  dissenting  opinions  of  Jus- 
tice Daniel,  273;  effect  of  declaring 
laws  void,  273;  judges  in  1861,  275  ; 
power  of  the  President  to  establish 
blockade,    275;    war    powers,   276; 
supremacy    of    civil    over    military 
power,  277 ;  war  vindicates  the  doc- 
trine of  the  court,  278  ;  conservative 
construction    given    to    the    recent 
amendments,    281  ;    powers    of    the 
states  upheld,  287,  297  ;  declares  that 
the  states  and  not  the  nation  confer 
privileges  and  immunities,  289,  291  ; 
the  negro  protected  from  discrimina- 
tion respecting  civil  rights,  290,  292  ; 
effect  of  recent  amendments  not  fully 


ascertained,  296 ;  due  process  of 
law,  296 ;  expansion  of  the  power 
to  regulate  commerce,  299 ;  obliga- 
tion of  contracts,  300;  notes  a  legal 
tender,  301  ;  political  cases,  302  ;  tax- 
ation, 302. 
Swayne,  Justice,  quoted,  283. 

Taney,  Roger  B.,  Chief  Justice,  243  ; 
quoted,  179,  181,  271  ;  referred  to, 
275,  276  ;  death,  277. 

Tariff,  of  first  Congress,  98;  of  1812, 
141,  151 ;  of  1816,  152  ;  of  1824  and 
1828,  153;  constitutionality  of  pro- 
tective, 154;  protective,  effect  of,  on 
slave  interests,  154;  explanation  of, 
for  protection,  for  revenue  only,  222 ; 
suggestion  of  judicial  tribunal  to  reg- 
ulate, 225. 

Taxation,  of  the  colonists,  33,  35,  37  ; 
exports  exempted  from,  79  ;  by  states 
and  nation,  225. 

Taylor,  Zachary,  President,  170. 

Tennessee,  admitted,  116 ;  secedes,  203  ; 
readmitted,  214. 

Texas,  claim  to,  given  away,  144  ;  early 
condition  of,  167;  annexed  and  ad- 
mitted, 170 ;  secedes,  203. 

Town  meetings,  23. 

Treaties :  between  England  and  France 
in  1762,  37  ;  under  confederation,  50  ; 
with  England  in  1783,  53 ;  states  for- 
bidden to  make,  77;  with  the  In- 
dians, 119;  with  France  in  our  revo- 
lution, 121 ;  Jay's  treaty  with  Eng- 
land, 123;  expires,  124;  opposition 
to,  124  ;  constitutionality  of  opposi- 
tion, 124;  with  Napoleon  in  1801, 
125;  with  Napoleon  in  1803  for 
Louisiana  territory,  135  ;  with  Eng- 
land, 1814, 138  ;  with  ^ain  for  Flor- 
ida, 144,  186;  with  England,  Oregon 
boundary,  186  ;  of  Utrecht,  187. 

Tyler,  John,  President,  166  ;  character 
and  administration,  166. 

"  Uncle  Tom's  Cabin,"  197. 

United  States,  has  little  territorial  ex- 
istence, 9  ;  a  power  more  than  a  body, 
9;  powers  of,  illustrated,  11  ;  has 
comparatively  few  powers,  12;  su- 


INDEX. 


389 


premacy  of  its  powers,  12,  308;  de- 
velopment of  its  departments,  13 ; 
governmeut  under  constitution  be- 
gins, 97;  reasons  why  it  cannot 
usurp  control  of  states,  309 ;  condi- 
tions favoring  its  stability,  303-328  ; 
possible  dangers,  329. 

Universal  suffrage,  benefits  of,  334; 
dangers,  329,  332. 

Utah,  government  for,  1 93. 

Van  Buren,  Martin,  President,  165; 
character  and  administration,  165  ; 
establishes  Sub-Treasury,  166. 

Vermont  and  Kentucky,  admitted,  116. 

Veto,  by  the  king'  in  the  colonies,  23 ; 
President's  power,  72  ;  the  first  veto 
overruled  by  Congress,  143;  of  U.  S. 
bank  charter,  by  Jackson,  150;  by 
Tyler,  167  ;  exercise  of,  useful,  150; 
Johnson's  overruled,  214. 

Vice-President,  office  created,  71 ;  be- 
coming President  by  death  of  Presi- 
dent, remarks  upon,  213. 

Virginia,  settlement  and  early  govern- 
ment of,  20  ;  has  first  representative 
assembly,  21 ;  education  in,  26 ;  re- 
ligious liberty  in,  28 ;  cedes  western 
lands,  58;  takes  action  leading  to 
the  constitutional  convention,  59 ; 
ratifies  constitution,  86;  builds  ar- 
mory, 128;  secedes,  203. 

Virginia  and  Kentucky  resolutions, 
127,  137,  155. 

Virtue,  public,  effect  of  decay  of,  338. 


Waite,  Morrison  R.,  Chief  Justice, 
243  ;  quoted,  289,  298. 

War  of  1812,  causey  leading  to,  137  ; 
how  waged,  138  ;  peace  gladly  made, 
138  ;  prosperity  following  it,  141  ; 
influence  upon  manufactures,  141. 

War  powers,  as  construed  by  the  su- 
preme court,  275. 

Washington,  George,  commander-in- 
chief,  41  ;  delegate  to  constitutional 
convention,  61 ;  character  of,  62 ; 
elected  first  President,  97  ;  his  admin- 
istration, 99-124 ;  remarks  of,  upon 
monarchists,  132. 

Wayne,  Justice,  275. 

Wayne's  victory  over  the  Indians,  119. 

Wealth,  obligations  imposed  upon,  320. 

Webster,  Daniel,  opposes  tariff,  141  ; 
favors  it,  152  ;  reply  to  Hayne,  157  ; 
his  argument  and  its  effect,  157-159  ; 
validity  of  argument,  163;  not  a 
constructive  statesman,  172 ;  quoted, 
104,  206,  242;  referred  to,  268,  271, 
272. 

Western  lands,  cession  of,  58,  184. 

Whig  party,  formed,  166;  objects  of, 
195;  expires,  195. 

Whiskey  rebellion,  118. 

Wilmot  Proviso,  192. 

Wilson,  James,  delegate  to  constitu- 
tional convention,  63 ;  to  Pennsyl- 
vania convention,  83 ;  speeches  of, 
83. 

Winthrop,  Governor,  quoted,  HI. 

Wisconsin,  fugitive  slave  case  in,  239, 


*'^ 


